legal desire quarterly journal issue 2
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Legal Desire Quarterly Journal Issue 2, March 2014TRANSCRIPT
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ISSN:2347-3525:
Legal Desire
Quarterly Journal
Issue 2 March 2014
Legal Desire Quarterly Legal Journal
Email: [email protected] Visit us:www.legaldesire.com
[1]
Editorial Board Editor-in-Chief:
Adv. Ashok Chaitanya
Executive Editors
Vibhor Aggarwal
Ajit Singh Kalia
Disha Sharma
Adv. R S Bhardwaj
Student Editors
Sameeksha Chowla
Tejaswini Ranjan
Ashima Ohri
Akshay Srivastava
Publishing Editor
Anuj Kumar
[2]
Founder’s Message….
It gives me a great pleasure to publish our second issue of ‗Legal Desire Quarterly
Journal‘. Our journal continues to thrive as a store-house of contributions to the
broad area of law. This journal wants to accomplish lots of milestones in terms of
defining and redefining paradigms to achieve excellence in the area of legal
research. We will rely on honesty, integrity, strength and ability of our contributors
to place ‗Legal Desire Quarterly Journal‘ among the very best. The Editorial board
is dynamic; it will offer a platform to the contributors to address the evolution and
new areas of interest in law. We endeavor to attract and publish high-quality papers
which are aimed essentially and substantially at significantly bridging the gaps
between the legal loop holes of the society. I take pride in congratulating all
contributors of this issue & give my heartiest thanks to the whole editorial board of
this Journal.
Or, in the words of the bard. . .
All the young dudes*
Carry the news
Boogaloo dudes
Carry the news
– David Bowie, ―All the Young Dudes‖
* Of course, being impeccably politically correct folk, we at Legal Desire are
adopting the word ―dudes‖ in its most inclusive sense (women, men, transgendered
persons, emergent properties of the youthful hive-mind).
We would like to hear from you about your views, suggestions and feedbacks for
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For Latest Legal News, Events, Judgment and Online Legal Services, visit our
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With Regards,
Anuj Kumar
Founder & Publishing Editor, Legal Desire
Email: [email protected]
[3]
LEGAL DESIRE QUARTELY LEGAL JOURNAL
ISSN NO: 2347-3525
Copyright © 2014 Legal Desire. All Rights Reserved
No part of this publication may be reproduced or transmitted in any form by means,
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While every precaution has been taken in the preparation of this journal, the
publisher and authors assume no responsibility for errors or omissions, or for
damages resulting from the use of the information contained herein.
[4]
Editorial A very warm welcome to the second issue of ‗Legal Desire‘ a quarterly journal. The
Legal Desire while releasing its first issue intends to create a journal about the law
and the legal field, but with difference. Now we come up the second issue. It not
only intends to cover events relating to the Indian Legal System, but is also
committed to make an effort to ensure this journal liked and needed across the
country.
The ‗Legal Desire‘ is a mixed lawyer and student edited quarterly journal that
publishes scholarly articles and commentaries on the law contributed by jurists,
practitioners, law professors and the students. Participation in this journal provides
students with the opportunity for concentrated study in specific areas of the law and
enhances their skills in legal research writings and analysis. Each student whose
articles have been published in this journal has demonstrated outstanding academic
achievements and a solid foundation in the legal skills.
What has impressed me most while perusing the manuscript handed over to me is
the diligence and meticulous care with which each of the authors of their respective
articles which includes law professor as well as law students, have approached the
subject matter of their respective articles. Such a journal for the practitioners, law
professors and law students are need of the hour. The law faculties and students
from various universities, colleges and institutes submitted their articles for our
considerations. Congratulations to the students and lecturers whose work was
selected, they can be justifiably proud of having their work chosen for publication
and we are happy to acknowledge their achievements.
I wish to express my sincere thanks to all those who have extended their unflinching
support for the launch of ―Legal Desire‖ particularly Editorial Board and more
specifically Founder &Publishing Editor of ‗Legal Desire‘ Sh. Anuj Kumar. I also
wish to convey my sincere gratitude to the erudite personalities who have
contributed invaluable articles for publication.
I wish the journal all success.
(Ashok Chaitanya)
Advocate, Supreme Court of India
[5]
Foreword… I was honored to be asked to write a foreword to Legal Desire Quarterly Journal
(Vol. 1, Issue 1). I had been familiar with Anuj Kumar (Founder &Publishing Editor
at 'Legal Desire Quarterly Journal') meticulously researched and beautifully
written articles (50+), and I‘m extremely delighted to read and possess the first
Issue of the Legal Desire Journal. A glance through the pages of this Journal will
show that it is an unusual type of publication. It consists of words and complete
analysis of the articles covered. This Legal Journal is a treasure for the law students
and Professionals.
This first issue of the Legal Desire Quarterly Journal touches upon a number of
issues worthy of note in present scenario.
A highly evolved and complex justice system makes enormous demands of the
people who work in it. Law Students and Professionals need up-to-date information
as well as professional analysis on land mark judgments. Legal Desire Quarterly
Journal delivers this vital information to them.
Life is less about the destination and more about the opulent Journey. No journal
will be the same as compared to other because the approach to contemplating and
completing the entries will be as unique as the experiences of the writers.
On behalf of all of the authors at Legal Desire Quarterly Journal, I hope you find
this particular edition both enlightening and informative.
Vibhor Agarwal
Publisher / Executive Editor
Pulse of Markets Newspaper
(www.pulseofmarkets.com)
[6]
Content
1. ABOLISHING THE COLLEGIUM SYSTEM................................................ 7
2. REFUGEE PROTECTION IN INDIA: THE
TIME FOR RECONSIDERATION ............................................................... 17
3. COPYRIGHT AND DIGITAL WORLD ....................................................... 36
4. LIMITATIONS TO THE JURISDICTION OF
INTERNATIONAL COURT OF JUSTICE .................................................. 56
5. ENVIRONMENT IMPACT ASSESSMENTS
AND SUSTAINABLE DEVELOPMENT IN
INDIA ............................................................................................................. 61
6. NORMS OF ASSISTANCE AND SALVAGE
IN INTERNATIONAL CIVIL AVIATION .................................................. 72
7. PEN – DOWN STRIKE: A RIGHT IN
QUESTION .................................................................................................... 86
8. WATER POLLUTION: A SERIOUS MENACE .......................................... 92
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1. ABOLISHING THE COLLEGIUM SYSTEM†
By: Vikrant Shetty1
“The present method of selection of members of the higher judiciary by
recommendations from judges themselves has outlived its utility. Judges of the High
Court and of the Supreme Court can be trusted to decide cases that come before them-but
experience has shown that they cannot be trusted to make binding recommendations for
appointments to the higher judiciary.”2
- Fali S. Nariman
Introduction
The procedure of Appointment of Judges of the Supreme Court and High Court
has been the subject of debate for several decades. The matter was brought into the
limelight in 2009, when allegations of corruption were made against a Chief Justice of
one of India‘s High Courts, immediately after the Supreme Court of India announced that
he would be elevated to the Supreme Court. The incident raised several doubts as to the
appointment of judges and the working of the collegium.
While many jurists favour setting up of a National Judicial Appointment
Commissions, similar Commissions in Canada, South Africa and England & Wales have
also been criticised in their respective countries. Some countries exercise selection of
Judges by the cabinet, while in others the Executive has a more than nominal role in
appointment of Judges.
A system of appointment which ensures appointment of the best candidates based
on integrity, knowledge, training, character and experience, and at the same time
maintains independence of the judiciary, is the need of the hour.
† This article reflects the position of law as on January 30, 2013
1 The author is a student of Government Law College, Mumbai and is presently studying in the Third Year of the Five Year Law Course. He can be contacted at [email protected] 2 Nariman, Fali S., Judiciary: Justice always needs courage, India Today, August 20, 2012.
[8]
Current Procedure of Appointments:
Appointment of judges to the Supreme Court of India and High Courts is provided
for in Article 124(2)3 and Article 217(1)
4 of the Constitution, respectively. These articles
provide that the power of appointment of Judges in the Supreme Court and High Courts
vests in the President, in consultation with the Chief Justice of India (CJI), as well as in
consultation with the Chief Justice of the High Court and Governor of the relevant state,
in the case of High Court appointments. The drafters of the Indian Constitution had
adopted this system of executive-led appointments of Judges since it was prevalent in
many countries at the time.5
Years earlier, when the Supreme Court‘s public image was at an all-time low, the
Supreme Court passed a landmark judgment in S.P. Gupta v. Union of India6 (The First
Judge‘s Case) and over a decade later passed its judgment in Supreme Court Advocates-
on-Record Association v. Union of India7 (The Second Judges Case) which substantially
overruled the First Judge‘s case. The majority of the Court in the First Judge‘s Case
simply held that the consultation with the CJI should not merely be an expression of
opinion but should be a full and effective consultation. However, the final decision still
remained completely in the hands of the executive. The Second Judge‘s Case established
the ‗judicial collegium‘ which consisted of the CJI and the senior-most judges of the
Supreme Court. However, the judgment was unclear as to how the judicial collegium was
to function.
In the Third Judge‘s Case the Supreme Court clarified the working of the judicial
collegium. The Chief Justice of India would have to consult his four senior-most
colleagues for Supreme Court appointments and his two senior-most colleagues for High
Court appointments. Additionally, the senior-most judge of the Supreme Court acquainted
3 (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and
seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as
the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five
years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of
India shall always be consulted:
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner provided in clause ( 4 ) 4 (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal
after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment
of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case
of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of
sixty two years. 5 Constituent Assembly Debates, New Delhi: Lok Sabha Secretariat, 2003, Vol. VIII, pp.229-399.
6 AIR 1982 SC 149 7 AIR 1994 SC 268
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with the High Court from which the potential candidate hailed (for Supreme Court
appointments) and to which High Court the candidate was proposed (for High Court
appointments) would have to be consulted. Further, the Chief Justice of the High Court
too, in forming his opinion, would have to consult his two senior-most colleagues.
Therefore, although the appointment of Judges was issued by the President, the real
appointment power lied with the judiciary itself. This system as laid down in the Third
Judges Case is prevalent even today.
Thus, it can be seen that the current procedure for appointment of Judges came
into existence by landmark decisions made decades. The decisions were passed during a
sensitive time and should not be continued.
Pros and Cons of the Collegium System:
The primary advantage of the collegiums system is that it maintains independence
of the judiciary from the other branches of government and prevents politically motivated
appointments. But the collegiums system has numerous disadvantages.
Deciding on appointment of Judges requires for a lot of time and consideration.
One must analyse the merits, capabilities, pas performance and potential of the candidate.
At any given time there are always two or three vacancies in the Supreme Court and
hundreds of vacancies in the 24 High Courts.8 The CJI is also responsible for several
other administrative obligations and delegations. In addition, the Chief Justices of the
High Courts and the CJI are loaded with task of transferring judges. At present, judges are
burdened as it is by the increasing number of cases that they have to hear and decide on,
which is their first priority.
As discussed earlier, the present collegium system has spawned from case law.
The two judgments which established and laid down the working of the collegium system
did so in haste and without going into details of its functioning. Even Justice Verma,
author of the majority opinion in the Second Judges Case, had admitted that the collegium
system was not working properly.9
8 For a succinct summary of problems of the collegium system, see Andhyarujina, TR, Appointment of
Judges by Collegium of Judges, The Hindu, New Delhi 18th December 2009;
http://www.thehindu.com/opinion/op-ed/article66672.ece, accessed on 13th March 2011. 9 Venkatesan, J. , Collegium system not working properly: jurists, The Hindu, New Delhi, December 13,
2009.
[10]
Also, from the past elevation of Judges from the High Court to the Supreme Court
it can be seen that the collegium only selects the senior-most Judges for elevation to the
Supreme Court, even though many more competent junior Judges are present.10
Recently, Retd. CJI P.N. Bhagwati had also expressed his dissent towards the
collegium system hinting that it leads to a sort of bargaining between the members of the
collegium.11
He stated that he preferred the old system, which he himself also followed,
of the CJI and law minister consulting with two senior colleagues, Attorney General and
even members of the Bar while considering appointment of a candidate.
Furthermore, with the increase in PILs and Judicial Activism there is already a
concern that the judiciary has become completely separated from the other branches of
government and has violated the principles of balance of power. While protecting the
Judiciary‘s independence, a system of check and balance is also required.
Procedure in other Countries:
Many countries have tried innovative procedures for the appointment of Judges.
Many of these reforms are very recent and yet, have managed to attract a wide range of
criticism. On the other hand, some countries have followed the same system for decades
without any issues arising. Of course, this is probably due the political climate that
prevails in those countries.
1) Israel: In Israel, judges are selected by the Judicial Selection Committee. On the
basis of their recommendation, the judges are appointed by the President. The
committee has nine members, as follows:
Justice Minister - Chairman
Cabinet Minister, chosen by the Cabinet.
Two Knesset Members, chosen by the Knesset (Since 1992 they usually appoint
one member from the coalition and one from the opposition).
Two members of the Bar Association (Usually selected by the two largest factions
in the bureau).
The Chief Justice, and two other judges of the Supreme Court (replaced every
three years by the panel of judges, the selection is usually by seniority).
10
Andhyarujina, T. R., Appointment of Judges by Collegium of Judges, The Hindu, December 18, 2009. 11
‗Interview with Justice P.N. Bhagwati‘ My Law.net, at
http://www.mylaw.net/Article/Interview_with_Justice_PN_Bhagwati/ (November 16, 2012)
[11]
The procedure begins with application for election by the applicant, which
includes filling of a questionnaire, submission of one‘s C.V., and giving references. After
references are confirmed the candidate list is published in Israel‘s gazette of record,
followed by a waiting period of at least 21 days in which a citizen can contact the
committee before the hearing, with a reason of opposition to a particular candidate. The
candidate is then interviewed by a subcommittee of the Judicial Selection Committee,
consisting of at least three members.12
2) Japan: In Japan only the appointment of the C.J. of the Supreme Court is made by
the Emperor. Other judges are appointed by the Cabinet, in consultation with the
C.J. of Japan.13
Even the other Judges are appointed by the Cabinet with the
Emperor‘s approval, even though constitutionally the Emperor has no right to
reject the appointment.14
Summary court judges are formally nominated for pro
forma cabinet appointment by a special selection committee formally comprising
all Supreme Court justices, the president of the Tokyo High Court, the deputy
procurator general, representatives of the bar, and others "with special knowledge
and experience.‖15
3) Canada: Canada had adopted the British system of selection by the government
and appointment by the head of state. However, in the 1980s Canada introduced
judicial appointments bodies for making appointments at the higher provincial
courts, but not for federal courts. Judges for the federal courts ie Courts of Appeal
and the Supreme Court are made by the cabinet on the advice of the Minister for
Justice.
4) England & Wales: Earlier, in the United Kingdom, the United Judges of the
House of Lords, the Court of Appeal, the High Court, and Circuit Judges were
appointed by the Crown acting on the advice of the relevant Ministers. The Prime
12
Shetreet, Shimon and Deschênes, Jules, Judicial Independence: The Contemporary Debate, 1985 ed. 13
Foote, Daniel H., Law in Japan: A Turning Point, 2007, pp.100-101 14
Haley, John O. and Rutledge, Wiley B., Washington University in St. Louis, The Japanese Judiciary:
Maintaining Integrity, Autonomy and the Public Trust, presented at a symposium held at Seattle,
Washington, p.2 15
Haley, John O. and Rutledge, Wiley B., Washington University in St. Louis, The Japanese Judiciary:
Maintaining Integrity, Autonomy and the Public Trust, presented at a symposium held at Seattle,
Washington, p.2
[12]
Minister, with the guidance of the Lord Chancellor, nominates the Law Lords,
Justices of Appeal and the Lord Chief Justice.
By the Constitutional Reform Act, 2005 a Judicial Appointment Commission was
created for selecting judges in England and Wales. Although the Lord Chancellor is no
longer responsible for the selection process s/he retains the responsibility for
appointments. The Commission consists of 15 members: 1 barrister, 1 solicitor, 5 judges,
1 tribunal member, 1 magistrate and 6 lay people.16
Candidates are judged on five
qualities: intellectual capacity, efficiency, personal qualities, ability to understand and
deal fairly, authority and communication skills and personal qualities.
5) Scotland: In Scotland, the Judicial Appointments Board for Scotland is
responsible for making recommendations on appointments to judicial offices.17
In
2009, it became an advisory Non-Departmental Body under the provisions of the
Judiciary and Courts (Scotland) Act 2008. The recommendations are made to the
First Minister of Scotland, who after consultation with the Lord President of the
Court of Session makes recommendation to the Queen of the United Kingdom.18
The statutory responsibilities of the Board under the Judiciary and Courts
(Scotland) Act are that:
a) the selection of an individual to be recommended for appointment must be
solely on merit;19
b) the Board may select an individual only if it is satisfied that the individual is of
good character;20
and
c) in carrying out its functions, the Board must have regard to the need to
encourage diversity in the range of individuals available for selection to be recommended
for appointment to a judicial office, subject to the provisions a) and b) above.
The Board consists of 10 members including lay people and legal/judicial people.
The Board is chaired by a lay person. This composition has led to ample of criticism.
16
Fohr, Anja Seibert, Judicial Independence in Transition , Volume 233, Springer, 2012, p.154 17
See generally, Beatson, Jack, Centre for Public Law, Constitutional Reform in the United Kingdom:
Practice and Principles, 1998 ed. 18
Mixed Jurisdictions Worldwide: The Third Legal Family, Vernon Valentine Palmer, 2001 ed., p.209 19
Section 12 of Judiciary and Courts (Scotland) Act 2008 20
Section 12 of Judiciary and Courts (Scotland) Act 2008
[13]
6) South Africa: According to Article 174 (3) of the Constitution of the Republic of
South Africa, Judges of the Constitutional Courts must be appointed by the
President after consultation with the Judicial Service Commission and the leaders
of the political parties represented in South African National Assembly.21
The
Judicial Service Commission prepares a list of three more names than the number
of vacancies, and the President appoints Judges from that list.22
The appointment
of magistrates falls under the separate Magistrates' Commission. Article 174 also
expresses need for the judiciary to reflect broadly the racial and gender
composition of South Africa, and that the same should be considered when
judicial officers are being appointed.
Suggestions and Recommendations:
Over the years the Law Commission and several eminent jurists have put forward
suggestions for the procedure for appointment in the higher judiciary. It is well
established that having the executive cannot have sole discretion as to appointment of
Judges, regardless of what the current political climate looks like. The independence of
the judiciary is of high priority. Many jurists recommend setting up of a National Judicial
Appointment Commission for appointment and transfer of Judges. This proposal was
made several times during the past four decades. In 1990, the Constitution (Sixty-seventh
Amendment) Bill, had sought to establish such a commission.
It proposed to introduce a Part XIIA to the Constitution, which would lay down
the composition of the Commission as under:-
“(3) The National Judicial Commission shall, -
(a) for making recommendation as to the appointment of a Judge of the Supreme
Court (other than the Chief Justice of India), a Chief Justice of a High Court and as to
the transfer of a Judge from one High Court to any other High Court, consist of -
1. the Chief Justice of India, who shall be the Chairperson of the
Commission; and
21
Venter, F., Constitutional Comparison: Japan, Germany, Canada and South Africa As Constitutional
States, 2000 ed., p.98 22
Venter, F., Constitutional Comparison: Japan, Germany, Canada and South Africa As Constitutional
States, 2000 ed., p.98
[14]
2. two other Judges of the Supreme Court next to the Chief Justice of India
in seniority;
(b) for making recommendation as to the appointment of a Judge of any High
Court, consist of –
(i) the Chief Justice of India, who shall be the Chairperson of the Commission;
(ii) the Chief Minister of the concerned State or if a Proclamation under article
356 is in operation in that State the Governor of that State;
(iii) one other Judge of the Supreme Court next to the Chief Justice of India in
seniority;
(iv) the Chief Justice of the High Court, and
(v) one other Judge of the High Court next to the Chief Justice of that High
Court in seniority.”23
The object and reasons of the amendment were to ―obviate the criticisms of
arbitrariness on the part of the Executive in such appointments without any delay.‖
Fortunately or unfortunately, the Bill lapsed and the amendment never came into effect.
Thus it can be seen that the most important issue that arises in establishing a
National Judicial Appointment Commission is as to what would be the composition of
this Commission?
The Judicial Standards and Accountability Bill, 2012 is currently before
Parliament. While this Bill does not deal with the appointment of Judges, it does establish
a National Judicial Oversight Committee which would look into complaints against
Judges. The composition of this Committee is proposed to be:
(a) a retired Chief Justice of India appointed by the President after ascertaining the
views of the Chief Justice of India (Chairperson);
(b) a Judge of the Supreme Court nominated by the Chief Justice of India
(Member);
(c) a Chief Justice of a High Court nominated by the Chief Justice of India
(Member ex officio);
(d) the Attorney-General for India (ex officio Member);
23 Advisory Panel on Strengthening of the institutions of Parliamentary Democracy; (Working of the Legislature, Executive and Judiciary; their accountability; problems of Administrative, Social and Economic Cost of Political Instability; Exploring the possibilities of stability within the discipline of Parliamentary Democracy), Chairman Justice Shri H.R. Khanna, National Commission To Review The Working Of The Constitution: A Consultation Paper on Superior Judiciary, September 26, 2001.
[15]
(e) an eminent person nominated by the President (Member):24
One could argue that if this committee has the power to judge the conduct of
Judges of the superior courts, then they would also be in a position to appoint Judges of
the same courts. The above composition would work very well for High Court
appointments and transfers. With a slight modification, such as exclusion of a Chief
Justice of High Court, the same composition is excellent for Supreme Court appointments.
It has also been suggested by T. R. Andhyarujina that there should be two commissions,
one for High Court Appointments and one for Supreme Court appointments, due to the
size of the Indian Judiciary.25
The abovementioned composition seems to be the most
suitable since their competence, integrity and impartiality, of most of the members, is less
likely to be doubted. Perhaps, instead of just one, there can be two members nominated
by the President to ensure a balance of power between the executive and judiciary.
As far as the procedure of appointment is concerned, we can make reference to the
procedure of application and selection in Israel. The list of the prospective candidates
should be published in the Official Gazette and the public should be invited to address
any objections they may have against any candidate. Once the objections are heard the
candidate should be given a chance to reply and the Commission must decide if the
objections are valid and shortlist candidates accordingly. After candidates have been short
listed, they can be interviewed. Such interview may be recorded on paper for the purpose
of transparency. The interview can be in the presence only a part of the Commission and
copies of the interview-on-record must be sent to the other members of the Commission
as well as to the candidate, so that the candidate can convey any corrections which s/he
feels need to be made to the record. This will ensure appointment of the best-qualified
candidate to judiciary.
It may not be a very practical idea to make the appointment of Judges completely
transparent. The reasons for rejecting a particular candidate need not be disclosed to the
public. If it is then it may hinder independence of the judiciary, for that candidate‘s
reputation may be unnecessarily injured. However, the candidates should have every right
to know why their name had not been short listed although their names had been
published in the Official Gazette.
24
Clause 18 of the Judicial Standards and Accountability Bill, 2012 25
Andhyarujina, T. R., Appointment of Judges by Collegium of Judges, The Hindu, December 18, 2009.
[16]
Even the Commission system of appointment is also not free from flaws. There is
still a chance that the Commission will be influenced by political pressure.26
However,
the advantages of the system greatly outweigh its minor disadvantages and it appears to
be the best possible system at this point, provided its composition consists of such
persons who can act independently, impartially and who are fairly in touch with the legal
profession or judiciary, and it functions in a transparent manner, wherever possible, and at
the same time exercises discretion, wherever necessary.
26 „Interview with Justice P.N. Bhagwati‟ My Law.net, at http://www.mylaw.net/Article/Interview_with_Justice_PN_Bhagwati (November 16, 2012)
[17]
2. REFUGEE PROTECTION IN INDIA: THE TIME FOR
RECONSIDERATION
By: Sandeep Menon Nandakumar27
Introduction
The Republic of India shares frontiers with Tibet, Nepal, Bhutan, Pakistan,
Myanmar and Bangladesh. The vast territory together with long porous borders particular
to India has made it a host for thousands of refugees from countries entering it. India has
provided a place of dignity for the persons coming from abroad within the Indian
community. This has included the Parsis who came to India twelve thousand years ago
and Jews who crossed over the Indian borders two thousand years ago. It should be noted
that all those who later went back to different nations did so only because of better
opportunities in such countries and not because of any unacceptable conditions in Indian
society. It is clear from the example that most of the Jews who have migrated to Israel did
so because they thought that they had better opportunities in Israel and not because of fear
of persecution. The basic reason for seeking refuge in India is the fact that the people in
the neighbouring countries share similar social behaviour, religion and even ethnicity.
The 1951 Convention Relating to the Status of Refugees, which is the main
international treaty relating to the protection of the refugees, defines a refugee as one who
has a well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion and is unable or unwilling to
avail himself of the protection of his or her country of origin. Some regional refugee
conventions have expanded this definition by including external aggression occupation,
events seriously disturbing public order and foreign domination as reasons for flight. For
example, Article 1(2) of the Convention Governing the Specific Aspects of the Refugee
Problems in Africa, 1974, the Cartagena Declaration on Refugees, 1984 and the Annual
Report of the Inter-American Commission on Human Rights provides a much broader
definition of a refugee.
27 B.A.LL.B. (Hons.) (NUALS), LLM (CUSAT), LLM (Exeter, UK); Lecturer, School of Legal Studies, CUSAT
[18]
Despite a huge refugee population, India has no specific legislative framework to
deal with refugee issues in the country. The refugees in India include Tibetans, Sri
Lankan Tamil refugees, Bangladeshi Chakmas, Chin Burmese, ethnic Nepalese from
Bhutan, Nagas, Afghans, Iranians, Somalis and people from other countries. Like most
other nations, India follows the standard international practice of receiving the displaced
persons initially in camps. Such people are later provided with food, medical treatment
and shelter they are also provided with further assistance at a later stage in the form of
self-employment schemes, agricultural land and public education. The same is very clear
from the fact that India has given refuge to a large number of Tibetans and Sri Lankans
and was given better facilities of rehabilitation mechanisms which were financed by
government itself. No work permit is required for the Tibetans and they enjoy the right to
work and live in settlements.
The refugee influxes and protection of their rights and determination of their stay
in the India territory are managed and controlled by the decisions taken by the
Government of India and ad hoc decisions taken mainly by the UNHCR. The office of the
United Nations High Commissioner for Refugees handled 10,283 refugees from
Afghanistan as well as 940 refugees from Myanmar in addition to refugees from Iran,
Somalia, Sudan and other countries by way of ad hoc decisions. The ad hoc
administrative policies and directions that are used by the Indian Government to protect
the rights of the refugees are backed by the administration of the Central Government
which includes the Ministry of Home Affairs and the Ministry of External Affairs and
other concerned departments of the Central and State Government.
The condition of the refugees in India depends upon the extent of protection they
receive either from the Government of India or from the UNHCR. Some of the refugees
are fortunate enough to get full and adequate protection from the Government of India
whereas other set of refugees are getting protection after their presence is acknowledged
by the United Nations High Commissioner for Refugees. Generally, the applications for
political asylum are considered by the Government itself and in such cases there will not
be an extensive refugee status determination. This is the general practice and the same
had happened in the case of Tibetan and Sri Lankan refugees during 1959 and 1983
respectively. The difference in treatment occurs due to the fact that the refugee status
[19]
determination in India is not backed by a legal mechanism but is only a political process.
In other cases, each and every asylum seeker must approach the UNHCR office situated
in New Delhi where they will be interviewed individually so as to assess their refugee
status. Once an assessment is made, those recognized as refugees are issued with a
UNHCR refugee residence permit.
There exists a totally different category of refugees who do not belong to the first
two groups, who entered India and got assimilated into the Indian community due to their
continued presence in the territory and whose presence is not acknowledged either by the
UNHCR or by the Indian Government. For example the Chin refugees from the Chin
State of Burma have entered the State of Mizoram in India due to the repression from the
Burmese military. The presence of Chin refugees is not acknowledged by the Indian
Government. It is clear from the written statement submitted at the Sixtieth session of the
Commission on Human Rights by the Asian Indigenous and Tribal Peoples Network
(AITPN) which is a non-governmental organization in special consultative status that
there are about 600 Burmese nationals in New Delhi who have not been recognized as
refugees by UNHCR and in addition to that only 20 of around 600 people have been
recognized by the UNHCR as refugees. All others were denied refugee status, that too,
without any written explanation for rejecting their applications. It is true that they get
assimilated into the Indian communities, but their standard of living is very poor and in
addition to all these they do not receive either international or State assistance.
This work is an attempt to find out the existing flaws in the refugee protection
mechanism and refugee status determination mechanism that currently exist in the Indian
context and to suggest ways to implement a solution to the already existing problems.
India and the 1951 Refugee Convention:
It is true that India has got a vast number of diverse refugee population but the fact
remains that India is not a party to the 1951 Convention Relating to the Status of Refugees
as well as the 1967 Protocol. Though India has produced a large number of refugees, it is
[20]
more often described as a ‗refugee-receiving‘ country than a ‗refugee-producing‘ one.28
Most of the countries in South Asia are parties to various international instruments
including Universal Declaration of Human Rights, 1948, International Covenant on Civil
and Political Rights, 1966, International Covenant on Economic, Social and Cultural
Rights, 1966, International Convention on Elimination of All forms of Racial
Discrimination, 1965 and Convention on the Rights of the Child, 1989 but have not
acceded to 1951 Refugee Convention and 1967 Protocol.
The main reason for not becoming a party to the 1951 Convention and 1967
Protocol is that India claims it to be a Eurocentric Convention.29
Another version is that
India is not ready to bear the financial responsibilities once they accept the obligations of
the 1951 Convention.30
One other probable reason for not being a party to the 1951
Convention is the fact that a broader definition of refugees by including ‗internal refugees‘
was not accepted by the international community.31
Another reason may be that India
amongst other south Asian Countries favours ‗bilateral approach‘ than ‗unilateral
approach‘ and by internationalizing any issue including refugee issues, India and other
countries feel that they are allowing more international criticisms that may have the effect
of diluting their national sovereignty.32
At the same time it should be borne in mind that the fear of indefinite legal
responsibility for the vast number of persons seeking shelter is the main reason for not
signing the 1951 Refugee Convention.33
The legal responsibilities include all the
obligations that flows from the 1951 Refugee Convention apart from the financial
responsibilities, as for example, non-discrimination, exemption from reciprocity and
employment opportunities. The possibilities of alteration in the structure and composition
of the labour markets caused by the refugee influxes, alterations in the linguistic as well
as religious composition of the country, disturbance caused to the socio economic balance
28
Choudhary, Omar, Turning Back: An Assessment of Non-Refoulement under Indian Law, (2004) 17 EPW
3257. 29 Chimni, B. S., The Legal Condition of Refugees in India, (1994) 7 Journal of Refugee Studies, p.394. 30 Sengupta, Ipshita, UNHCR’s Role in Refugee Protection in India; www.infochange.india.org, last visited November 3, 2013. 31
Vijayakumar, Veerabhadran, A Critical analysis of Refugee Protection in South Asia, 19 Refugee 6
(2001). 32 Vijayakumar, Veerabhadran, A Critical analysis of Refugee Protection in South Asia, 19 Refugee 6 (2001). 33
Choudhary, Omar, Turning Back: An Assessment of Non-Refoulement under Indian Law, 17 EPW 3257
(2004).
[21]
of the country and the huge economic obligation which has to be undertaken by the
Government are also reasons for not becoming a party to the 1951 Convention.34
The 1951 Refugee Convention itself allows considerable discretion to the
receiving states over matters of interpretation and implementation of the Convention and
apart from that the Convention does not mandate the receiving states to provide any
durable protection such as the right to permanent settlement but only mandates not to
return the refugees to a territory where they face persecution.35
If that‘s the case, even
though it is true that the Indian framework of protecting refugees allows wider discretion
to the executive authorities, it cannot be said that India acts contrary to the 1951
Convention despite not being party to it.
India’s attitude towards the rights guaranteed under the 1951 Refugee Convention:
Article 13 of the 1951 Refugee Convention provides for property rights that cover
movable and immovable property, but refugees in India have not been granted the
property rights over agricultural lands as well as houses.36
In India even after three
decades the Tibetans do not enjoy property rights over houses and agricultural lands
which they were allowed to use on lease. But like other foreigners in India, the refugees
were also allowed the right to form peaceful associations which are evident from the
student as well as welfare refugee associations formed by the Burmese and Chakma
refugee communities.37
This proves that the right to form non political or nonprofit
associations and trade unions in the territory where they are staying, which has been
granted by Article 15 of the 1951 Convention38
has been taken care of in the Indian
scenario. But the right to association can be controlled by the Foreigners Order of 1948
34 Sengupta, Ipshita, UNHCR’s Role in Refugee Protection in India; www.infochange.india.org, last visited November 3, 2013. 35 Delabunty, Robert, The Refugee Convention in the Twenty First Century,; http://repository.forcedmigration.org/show-metadata.jsp?pid=fmo:34 (last visited November 13, 2013) 36 Article 13 - Movable and immovable property: The Contracting States shall accord to a refugee treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property. 37 Chakraborty, Manik, Human Rights & Refugees: Problem, Laws and Practices, 2001 ed., p.133. 38
Article 15 - Right of association: As regards non-political and non-profit-making associations and trade
unions the Contracting States shall accord to refugees lawfully staying in their territory the most favourable
treatment accorded to nationals of a foreign country, in the same circumstances.
[22]
under Article 1139
which permits India to ―control an individual‘s place of residence,
movement, association with any persons or classes of persons and possession of any
specified articles.‖40
The right of the refugees to choose their place of residence and the
right of movement freely within the territory of the country is granted under Article 26 of
the 1951 Convention41
and in this regard the refugees in India enjoy freedom of
movement as well as residence within the territory. The refugees are free to live in
refugee camps but it does not mean that they are prevented from residing in private
houses if they can afford the same. The right to housing under Article 21 of the 1951
Refugee Convention42
is more or less fulfilled and it is obvious from the fact that the
Afghan and Sri Lankan refugees are residing in private houses in certain states in India.43
Article 28 of the 1951 Refugee Convention provides for issuance of travel
documents to refugees lawfully staying in the territory for the purpose of travelling to
other countries, but in the Indian context the refugees were not provided with travel
documents44
except to Tibetan refugees and instead, in general, only identification
certificates were provided to show their refugee status.
Legislative Framework in India:
Though the post-independence period did not come up with specific legislations
regarding refugees, there existed different legislations specifically with regard to the
protection of rights of refugees in the pre-independence era. Some of them include the
39 Article 11 - Powers to impose restrictions on movements, etc: The civil authority may, by order in writing, direct, that any foreigner shall comply with such conditions as may be specified in the order in respect of: (1) his place of residence; (2) his movements; (3) his association with any person or class of persons specified in the order; and (4) his possession of such articles as may be specified in the order. 40 Sharma, Maina, Refugees In Delhi, (2009); http://www.ccsindia.org/ccsindia/downloads/intern-papers-09/refugees-in-delhi-229.pdf, last visited November 15, 2013. 41
Article 26 - Freedom of movement: Each Contracting State shall accord to refugees lawfully in its
territory the right to choose their place of residence and to move freely within its territory subject to any
regulations applicable to aliens generally in the same circumstances. 42
Article 21 – Housing: As regards housing, the Contracting States, in so far as the matter is regulated by
laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying
in their territory treatment as favourable as possible and, in any event, not less favourable than that
accorded to aliens generally in the same circumstances. 43 Article 13 - Movable and immovable property: The Contracting States shall accord to a refugee treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property. 44 See Thames, H. Knox, India’s failure to Adequately Protect Refugees, (1999) 7 Human Rights Brochure 20; http://www.wcl.american.edu/hrbrief/v7i1/india.htm, last visited November 8, 2013.
[23]
Patiala Refugees (Registration of Land Claims) Act of 1948, the UP Land Acquisition
(Rehabilitation of Refugees) Act of 1948, the East Punjab Refugees Rehabilitation
(Building and Building Sites) Act of 1948, the East Punjab Refugees Rehabilitation
(House Building Loans) Act of 1948 and the East Punjab Refugee Rehabilitation (Loans
and Grants) Act of 1948. The most important aspect of these legislations is the fact that
these legislations defined the term refugees much before it appeared in the 1951
Convention Relating to the Status of Refugees. The term ‗refugee‘ in those legislations
meant a land owner in the territories now comprised in the Provinces of West Punjab,
North West Frontier Province, Sind or Baluchistan or in any State adjacent to any of the
aforesaid Provinces and acceding to Pakistan and who has since the 1st day of March,
1947, abandoned or has made to abandon his land in the said territories on account of
civil disturbances, or the fear of such disturbances, or the partition of the country.45
Most
of the above mentioned pre-independence era legislations dealt with persons who were
displaced due to civil disturbances or partition. These legislations can be said to be in tune
with the 1951 Convention as the provisions contained a specific time frame, a specific
reason for persecution, grounds for persecution, a specific location and the fact that the
person is not able to return to his country of nationality.46
With regard to post independence legislations, there exists no legislations specific
to deal with refugees. The legislations that exist in India to deal with foreigners are the
Registration of Foreigners Act of 1939, the Foreigners Act of 1946 and the Foreigners
Order of 1948. These legislations are not adequate enough to deal with the issues in
relation to refugee protection keeping in mind the obligations under the 1951 Refugee
Convention. The Registration of Foreigners Act, 1939 is mainly concerned with the
registration of foreigner‘s entry, when he or she is present in India and departing from
India. The Passport (Entry into India) Act, 1920 empowers the Government to impose
certain conditions in regard to possession of a passport for entry into India. Another
important legislation dealing with foreigners, namely the Passport Act of 1967 is
concerned with the issue of passports and travel documents to regulate the departure of
the Indian citizens from India. The other existing laws are the Extradition Act of 1962,
45 Vijaykumar, V., Institutional Responses to Refugee Problems in India; http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:1814; last visited November 5, 2013. 46 Vijaykumar, V., Institutional Responses to Refugee Problems in India; http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:1814; last visited November 5, 2013.
[24]
and, as stated above, the Foreigners Order of 1948 which deals with the power to grant or
refuse permission to enter and depart from India and the Citizenship Act of 1954. The
Foreigners Act of 1946 is an archaic legislation enacted to respond to the needs of the
Second World War and its continuation even now is only because of the government‘s
desire to retain absolute powers in regard to matters concerning foreigners.47
The
Foreigner‘s Act of 1946 is used to determine issues with respect to refugees in India
currently. The basic problem with the 1946 legislation is the fact that the term ‗refugee‘
cannot be found anywhere in the statute and instead refugees are covered under the term
‗foreigners‘.48
In short, the Indian legal framework places refugees in line with
immigrants and tourists and ultimately what happens is that the refugees are deprived of
their rights mandated by the 1951 Refugee Convention. It may be true that the 1951
Refugee Convention seeks to have refugees in an even footing with other residents and
hence if refugees are considered in the same way like immigrants and tourists it is
possible that some of their rights are met. It is often forgotten that the refugees flee from
one country to the other because of imminent threats and danger to their life and liberty
and are hence unable to get the required travel documents from their country of origin.
But the practice of dealing with refugees that has been followed by India shows that the
question of their admission into the territory and giving permission for their continued
stay within the territory are dealt with only under the legislations that deal with foreigners
who, unlike refugees, possess the travel documents as well as other documents and they
are generally persons who voluntarily leave their home and they belong to an entirely
different category when compared to the refugees. The basic foundation is lost when
refugees are dealt under legislations meant for an entirely different set of categories and
there are no chances that such legislations takes into account the obligations stated under
the 1951 Refugee Convention. The Indian Citizenship Act, 1955 though amended in 2003
is similar to the outdated Foreigners Act of 1946 in relation to refugee protection as it
does not make any distinction between refugees and other immigrants or foreigners. The
Illegal Migrants (Determination of Tribunals) Act of 1983 which extends to the whole of
India, though it is only in force in the State of Assam, empowers the Government of India
to constitute Tribunals for finding out illegal migrants for the purpose of expelling them.
47 Bhairav Acharya, The Law, Policy and Practice of Refugee Protection in India, http://y4e.in/pdf/wc/Refugees and Displacement/ Law, Policy and Practice of Refugee Protection.pdf; last visited November 3, 2013. 48 Nair, Arjun, National Refugee Law for India: Benefits and Roadblocks; www.ipcs.org; last visited November 11, 2013.
[25]
The customary principle of non-refoulement which prohibits expulsion of
refugees is not followed at all times in the Indian context.49
The Foreigners Act of 1946
permits refoulement mainly through deportation and hence cannot be said to be in tune
with the international customary law. In addition, the above mentioned legislations grant
powers to the government to restrict the movement of foreigners within its territory to
limit employment opportunities and to compel medical examinations that are banned by
the Refugee Convention of 1951 and furthermore it is highly unlikely that equality of
treatment to all refugees is followed.50
Constitutional Provisions in relation to Protection of the Rights of Refugees:
The Constitution of India provides certain provisions under its VII Schedule under
Entry 1751
and 1952
of List I and Entry 2753
of List III in the field of protection of
refugees. The VII Schedule of the Constitution primarily deals with the division of law
making power between the Centre and the State governments respectively,
The Indian Constitution does not deal with refugees explicitly in any of its
provisions. The power and procedure relating to treaty making can be seen under Article
51 (c) and 253 of the Constitution. The enactment of a domestic law in relation to an
international convention is empowered under this section. The main Constitutional
protections available to non citizens of India which includes refugees as well are the
protection guaranteed under Article 14 of the Constitution of India which provides for
equality before law and equal protection of the laws and Article 21 of the Constitution of
India which provides for protection of life and personal liberty. These are the two main
constitutional provisions which can be used to safeguard the rights of the refugees. The
refugees are also entitled to constitutional protection under Article 20 which deals with
49
The case laws such as Louis de Raedt v. Union of India, 1991) 3 SCC 554; case of Hans Muller of
Nuremburg, AIR 1955 SC 367 and Sarbananda Sanowal, (2005) 5 SCC 665 are examples for this
proposition. 50
Bhairav Acharya, The Law, Policy and Practice of Refugee Protection in India,
http://y4e.in/pdf/wc/Refugees and Displacement/ Law, Policy and Practice of Refugee Protection.pdf; last
visited November 3, 2013. 51
Entry 17 of List I, Schedule VII, Constitution of India: Citizenship, Naturalization and aliens 52
Entry 27 of List III, Schedule VII, Constitution of India: Admission into, and emigration and expulsion
from, India; passports and visas 53
Relief and rehabilitation of persons displaced from their original place of residence by reason of the
setting up of the Dominions of India and Pakistan.
[26]
freedom from ex-post facto law, protection against convicting a person more than once
for the same offence and protection against self-incrimination, Article 22 which provides
for the rights in cases of arrest and detention, Articles 25, 26, 27, and 28 mainly dealing
with religious freedoms and right to move the Supreme Court for the enforcement of
fundamental rights under Article 32 of the Constitution of India.
The exact picture of constitutional provisions such as Article 21 would be clear
only if there arise more case laws on the point. At the moment, it can be seen that various
authors have come to different conclusions with regard to the protection of the principle
of non refoulement under Article 21 of the Constitution of India. B.S. Chimni argues that
article 21 can be interpreted to encompass the principle of non refoulement.54
According
to Omar Choudhary55
though the scope of Article 21 of the Indian Constitution has been
widened by the judiciary, it fails to guarantee non refoulement to each and every refugee
primarily because Article 21 of the Constitution of India provides less protection when it
is applied to aliens as different from citizens of India. The non-applicability of Article 21
of the Constitution to non-state actors also creates an apprehension in regard to cases of
torture caused by private individuals towards refugees in India.
The observance of ‗procedure established by law‘ to be ‗just, fair and reasonable‘
as mandated by the Supreme Court in Maneka Gandhi v. Union of India56
overruling the
decision of the same Court in the case of A.K Gopalan v. State of Madras57
can be used to
check the validity of the executive action expelling foreigners under the Foreigners Act of
1946. In a way, as refugees are dealt under the very same legislation, the above
mentioned test of ‗just, fair and reasonable‘ procedure can be applied to check the
reasonableness of the procedure employed in cases of refugee status determination.
Apart from Articles 14, 25 and 21 of the Constitution of India, Articles 32 and 226
of the Constitution of India also plays a major role in the protection of refugees. The
right to approach the Court freely is assured under Articles 32 and 226 of the Constitution
of India especially when the right of the refugees granted under Articles 14, 21 and 25,
54
Chimni, B.S., International Refugee Law: A Reader, 2000 ed., p.380. 55
Choudhary, Omar, Turning Back: An Assessment of Non-Refoulement under Indian Law, (2004) 17 EPW
3257. 56
AIR 1978 SC 597 57
AIR 1950 SC 27
[27]
which deals with right to equality, right to life, to personal liberty and right to practice
one‘s own religion respectively is violated. It should be noted that Article 16 of the 1951
Refugee Convention58
provides for free access to the Courts by the refugee and in this
regard it can be stated that the Indian domestic law as well as the Constitution takes care
of this right explicitly. Though there are no express provisions with regard to the right to
social security, the refugees in India also enjoy security in the same way as the citizens of
India basically under Part IV of the Constitution of India dealing with Directive
Principles of State Policy.
Judicial Responses to Refugee Claims and Refugee Protection:
The trend of the judiciary has been to uphold the notion that the power to remove
foreigners from the territory vests with the executive and is generally free from judicial
review. In the case of Hans Muller of Nuremburg v. Superintendent, Presidency59
, the
Court held that the Central government has unfettered discretion to expel foreigners from
India. This ruling has been upheld by the Court in several other decisions including Louis
De Raedt v. Union of India60
and Sarbananda Sanowal v. Union of India.61
These case
laws also make it clear that the executive is not bound to give valid reasons for expelling
a foreigner from the Indian Territory. The discretionary power of the executive is well
explained by the Court in the case of Louis de Raedt v. Union of India62
wherein it was
held by the Court that the government has an absolute right under the Foreigners Act of
1946 to deport aliens.
There have been a series of judicial decisions rendered by the Supreme Court of
India and by the various High Courts in regard to definition of refugee in the India
context and also with regard to refugee protection and refugee status determination.
Though some of the legislations uses the term ‗displaced‘, the Supreme Court has
58
Article 16 - Access to courts: 1. A refugee shall have free access to the courts of law on the territory of all
Contracting States. 2. A refugee shall enjoy in the Contracting State in which he has his habitual residence
the same treatment as a national in matters pertaining to access to the courts, including legal assistance and
exemption from cautio judicatum solvi . 3. A refugee shall be accorded in the matters referred to in
paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a
national of the country of his habitual residence. 59 AIR 1955 SC 367 60 (1991) 3 SCC 554 61 (2005) 5 SCC 665 62 (1991) 3 SCC 554
[28]
clarified in Narendra Bahadur v. State of Uttar Pradesh63
that though there is technical
difference between displaced persons and refugees, the same should not be always looked
into and observed that if there is a substantial compliance with laws, the law can be
applied to refugees as well. The Supreme Court has also clarified the definition of refugee
in the case of Chief Settlement Commissioner, Punjab v. Om Prakash64
to mean a person
who has migrated to India as a result of disturbances or fear of disturbances or partition of
the country.
The court in Malavika Karlekar v. Union of India65
prevented the deportation of
Burmese nationals and allowed the right to approach the United Nations High
Commissioner for Refugees for applying to obtain the status as refugees. Similar ruling
has been given by the Courts in P. Nedumaran and Dr. S. Ramdoss v. Union of India66
and Boggi v. UOI67
. It is clear from the decisions such as P. Nedumaran68
and
Gurunathan69
that though the right of non-refoulement has not been given any specific
recognition, the courts have safeguarded the right of the refugees against forced
repatriation in some instances. To detail it out, in C.P Nedumaran and Dr. Ramadoss v.
Union of India and another, the High Court of Madras observed that the evidence before
the Court shows that the refugees have the required correspondence with the persons and
organizations of the outside world and came to a conclusion that there are no materials to
show that those persons who have expressed their unwillingness are compelled to go out
of the country. In the case of Gurunathan and Others v. Government of India70
the main
allegation was that the refugees were being forced to sign letters of consent so as to
repatriate them and were hence repatriated against their will. But the High Court of
Madras expressed its faith in the working of UNHCR in ascertaining voluntariness of
consent and held that it is a matter within the complete purview of the UNHCR and hence
it is not advisable for the Court to interfere with the same. In the case of Sayed Ata
Mohammad v. Union of India71
where the accused who was an Iranian National was
about to be departed back to Iran by the Government of India for not having a valid visa,
63 AIR 1977 SC 660 64
AIR 1969 SC 33 65 Cri.W.P. No. 583/92 66 W.P Nos 12298 and 12343 of 1992 67 W.P. 1847/89 68 WPC 12298 & 12313/ 1992 69 WPC 6708 & 79168/ 1992 70 WP No. 6708/92, (Mad) 71 A.D.Cri. No. 48 of 1994
[29]
the Mumbai High Court held that the accused cannot be deported under the circumstances
where he was declared to be a refugee within the mandate of United Nations High
Commissioner for Refugees.
The decision of the court in Digvijay Mote v. Govt of India72
resulted in the Sri
Lankan refugee children getting basic amenities like food and tea and basic humanitarian
consideration. The highlight of the case of Digvijay Mote v. Government of India of the
year 1994 was that it was only when the conditions of the refugee children was brought to
the notice of the authorities that the government agreed to do what was required. On the
other hand, in the case of Mohammed Sadique v. Government of India73
and Khadija v.
Union Of India74
, the Court came to the conclusion that if the continued presence of
refugees interfered with the criminal laws of the country or national security, they could
be returned home despite serious threats against their life.
In the case of Shah Ghazai v. Union of India75
, the High Court of Punjab and
Haryana quashed the order of deportation of the petitioners who were Afghan nationals
and further ordered release of those Afghan nationals into the custody of the UNHCR
office situated in New Delhi. Similarly, in the case of Ktaer Abbas Habib Qutaifi v.
Union of India76
, the High Court of Gujarat directed the release of two Iraqi nationals
from detention from the Joint Interrogation Centre77
situated in Kutch and further more to
hand them over to United Nations High Commissioner for Refugees to determine their
refugee status.
In the case of N.D Pancholi v. State of Punjab78
, the Apex Court stayed the
deportation order issued against a Burmese refugee and allowed time for him to approach
UNHCR office in New Delhi. Similar deportation orders were stayed in the case of
Zothansanguli v. State of Manipur79
, KhyHtoon v. State of Manipur80
and U. Myat Kayew
72 W.A 354 of 1994 73 Civil Rule Writ No. 405/ 98 74 Criminal WP No. 658/ 1997 75 Criminal Writ Petition No. 499 of 1996 76 1999 CriLJ 919 77 The Joint Interrogation Centre is a centre for the exploitation of intelligence information from both prisoners and detainees coming under the state police intelligence department; http://www.indianexpress.com/news/gujarat-may-soon-have-one-more-joint-interro/536068/; last visited November 3, 2013. 78 WP 243/ 88, SC 79 CR No. 981/ 89 Gau HC
[30]
v. State of Manipur81
. The basic reason which the court noted in these cases is that if
deported, the refugee‘s life would be in danger and the significance of these cases is that
the court noted that the refugees have a right to be protected against deportation order
under International Law and also have fundamental rights under Articles 10, 21 and 22 of
the Constitution of India. In the case of Zothansangpuri v. State of Manipur82
the
Guwahati High Court held that refugees have the right not to be deported if their life was
in danger in the country to which he is proposed to be deported. Similarly in the case of
Majid Ahmed Abdul Majid Mohd Jad Al- Hak v. Union of India83
, the Court observed that
basic amenities in life such as food and medical care must be provided while in detention.
In Khadija v. Union of India84
the High Court of Delhi observed that the international law
and international conventions cannot be applied to refugees who are indulging in criminal
activities, and, as a result, they can be repatriated or deported. Though the 1951 Refugee
Convention under Article 1 (f) lays down that ―the provisions of the Convention shall not
apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in respect of such
crimes;, the court in the instant case failed to address the same. In U. Myat Kayew v. State
of Manipur, the Court released the persons from jail who entered India from Burma
without travel documents to enable them to contact the UNHCR office to claim refugee
status. The court would have asked for sureties for their release but did not do so because
of the fact that they are new to the territory and would be unable to find sureties.
Furthermore, especially in cases like Nuang Maung Mye Nyant v. Government of India85
and Shar Aung vs. Government of India86
, the court ruled that even those refugees against
whom cases were pending for illegal entry should be provided exit permits to enable them
to leave the country for third country resettlement.
80 WP No. 515/ 90 Gau HC 81 CR No. 516/ 91 Gau HC; The Gauhati High Court in this case held that as part of Article 21 of the Indian Constitution asylum seekers who enter India, even if illegally, should be permitted to approach the UNHCR office to seek refugee status. 82 Civil Rule No. 981 of 198 83 Crl. WP No. 60 of 1997 84 Crl. WP No. 658 of 1997 85 CWP No. 5120/94 86 Gl. WP No. 110 of 1998
[31]
In State of Arunachal Pradesh v. Khudiram Chakma87
, though the High Court
permitted re-settlement of Chakmas, it made it very clear that the refugee must be
provided with some basic necessities of life so as to enable them to live with dignity.88
The Supreme court allowed the appeal in favour of the state by holding that though
foreigners are entitled to fundamental rights under Article 21, their right to life and liberty
do not include the right to reside and settle in the territory as provided under Articles
19(1) (d) and (e) of the Indian Constitution.
Later, it was the landmark case of National Human Rights Commission v. State of
Arunachal Pradesh89
that gave hope to refugees in India. In this case, the main issue was
with regard to the persecution of Chakmas by the citizens of Arunachal Pradesh. The
decision in State of Arunachal Pradesh v. Khudiram Chakma that Chakmas are not
entitled to acquire their own land because they are foreigners contributed a lot to the anti-
refugee movement organized by the All Arunachal Pradesh Students Union (AAPSU). In
National Human Rights Commission v. State of Arunachal Pradesh, the Supreme Court
held that the State government must carry out its obligation impartially to safeguard the
life, health and well-being of Chakmas residing in the state and should not permit
anybody of group of persons including All Arunachal Pradesh Students union to force the
Chakmas to leave the territory. The Supreme Court also observed that Chakmas shall not
be evicted from their homes and shall not be denied domestic life and comfort except in
accordance with law. Furthermore, it should also be noted that the Court in National
Human Rights Commission v. State of Arunachal Pradesh issued a writ of Mandamus to
ensure protection of life and liberty of Chakmas in Arunachal Pradesh and also made sure
that the applications for citizenship filed by Chakmas reaches the central government for
consideration and ruled that as they have been in Arunachal Pradesh for more than three
decades and have developed strong ties in the territory of India, they shall not be evicted
until the Central Government comes to a decision regarding their citizenship.
87 AIR 1994 SC 1461 88 Similar reasoning can be seen in the case of M.S.S v Belgium & Greece (Application No. 30696/09, 21 January 2011) which was concerning the expulsion of M.S.S. who was an asylum seeker to Greece by the Belgian authorities in application of the European Union Dublin II Regulations. In this case, the Grand Chamber observed in Para 233 that “in the light of the available information on the conditions at the holding centre near Athens airport, the Court considers that the conditions of detention experienced by the applicant were unacceptable. It considers that, taken together, the feeling of arbitrariness and the feeling of inferiority and anxiety often associated with it, as well as the profound effect such conditions of detention indubitably have on a person‟s dignity, constitute degrading treatment contrary to Article 3 of the ECHR. In addition, the applicant‟s distress was accentuated by the vulnerability inherent in his situation as an asylum seeker.” 89 (1996) 1 SCC 742
[32]
Application of the Principles of the 1951 Refugee Convention in the Indian Context:
It is true that the judicial developments tend to show that India can still hope for
better protection of refugees even though it is not a party to the 1951 convention, if the
judiciary is capable of relying on International law principles and constitutional
provisions.90
Though not directly dealing with the protection of refugees , in a matter
concerning protection of women from sexual harassment at work place, the Supreme
Court in the case of Vishaka v. State of Rajasthan91
held that in the absence of a domestic
law occupying the field, the contents of international conventions and international norms
are significant in the interpretation of the rights and any international convention which
is not inconsistent with the fundamental rights and which is in harmony with its spirit
must be read into the provisions to enlarge the meaning and its content and to promote the
object of constitutional guarantee. The basis of this judicial decision can be applied in the
context of refugee protection in India wherein it can be said that even though India is not
expressly a member of the 1951 Convention Relating to the Status of Refugees and the
1967 Protocol, its provisions can be read into the Indian national system even without a
specific legislation to deal with refugees once India becomes a party to the International
Convention and Protocol where there exists no legislative framework to the contrary.
It was thought that the international conventions and the principles of customary
international law are not enforceable in the Indian courts in the absence of a specific
statute concerning the same92
due to the presence of Article 51 and Article 253 of the
Constitution of India which speaks about the need for a legislation to give effect to
international treaties. In this regard, it should be noted in the case of MaganBhai
Easwarlal Patel v. Union of India93
it was held that the making of law is necessary only
90
The Supreme Court in Vishaka v. State of Rajasthan, AIR 1997 SC 3011 observed that ―the international
conventions and norms are to be read into them in the absence of enacted domestic law occupying the fields
when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard
must be had to international conventions and norms fro construing domestic law when there is no
inconsistency between them and there is a void in the domestic law.‖ 91 AIR 1997 SC 3011 92 This is primarily because of the ruling by the Supreme Court in the case of Jolly George v. Bank of Cochin, AIR 1980 SC 470 where the court observed that the executive power of government of India to enter into international treaties does not mean that international law, ipso facto, is enforceable upon ratification. This is because Indian constitution follows the “dualistic‟ doctrine with respect to international law. Therefore, international treaties do not automatically form part of national law. They must, where appropriate, be incorporated into the legal system by a legislation made by the Parliament. 93 AIR 1969 SC 783
[33]
when the treaty or an agreement restricts the rights of a citizen or modifies the laws of the
State and if the rights of the citizen are not affected, there is no need for any legislative
measure so as to give effect to the treaty or agreement in question. It has also been held
in the case of Gramaphone Co. of India Ltd. v. Birendra Pandey94
that the municipal law
of the country should respect the rules of international law and the rules of international
law may be accommodated in municipal law even without express legislative sanction
provided they do not run in conflict with acts of Parliament. It is clear from this decision
that if the international convention or an agreement is not in conflict with the Indian law,
then international law can be absorbed and applied in the Indian context without an
express legislative enactment.
Role of National Human Rights Commission and Non-Governmental Organizations:
The National Human Rights Commission has been successful in protecting the
Chakmas, Hajongs and Sri Lankan Tamil refugees and has also been keen on directing
the state government to provide medical treatment to the refugees at camps and in not
deporting forcefully refugees from the territory until their complaints are heard and
disposed of.95
The National Human Rights Commission had also issued directions to state
governments of Tamil Nadu as well as Mizoram to provide immediate medical
facilities.96
The National Human Rights Commission in its report has stressed the need for
making a legislation to deal with the refugees in India or at least to make necessary
amendments to the Foreigners Act of 1946 to deal with the current situations.97
Moreover,
the National Human Rights Commission has also made it clear in its 5th
, 7th
, 8th,
9th and
10th
reports, the need for an effective domestic refugee protection system and to sign the
1951 Refugee Convention.
The NGOs have also played a major role in dealing with refugee issues and in
facilitating prompt assistance and financial arrangements for safeguarding the basic rights
of refugees. The National Human Rights Commission has also investigated the poor
94 AIR 1984 SC 667 95
Vijaykumar, V., Institutional Responses to Refugee Problems in India;
http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:1814; last visited November 5, 2013. 96 The Statesman, August 22, 1994 and August 8, 1994; www.thestatesman.net, last visited November 2, 2013. 97 Nair, Arjun, National Refugee Law for India: Benefits and Roadblocks; www.ipcs.org; last visited November 11, 2013.
[34]
conditions of the refugee camps in Tripura and reported the matter before the State and
Central Governments after which the conditions of the refugee camps got improved.
Moreover, the National Human Rights Commission took up the cases of the Sri Lankan
Tamil refugees who were detained in special camps in the State of Tamil Nadu on being
suspected as the Liberation Tigers of Tamil Eelam militants, before the State Government
of Tamil Nadu and secured their release.98
Though the National Human Rights Commission has remained as a watchdog and
functioned effectively for the protection of the refugees and their rights and though the
judiciary has intervened to secure the basic rights of the refugees, the exact position of the
legal protection of the refugees remains nebulous especially in regard to the principle of
the non refoulement as the orders of protection are all ‗ad-hoc‟ and not on a permanent
basis.
Conclusion
It is especially hard when it comes to a situation where the international
community views a particular group as refugees but the country in which they reside does
not admit them as refugees thereby denying them their rights as refugees as had happened
in the case of Burmese nationals who were in India for almost 40 years. The practice of
dealing with the refugees under the law applicable to foreigners cannot be accepted at any
cost and it would be highly appreciated if there exist a specific and legal framework that
distinguishes a refugee from other aliens and foreigners. Sooner or later, India has to
discontinue treating refugees under the Foreigners Act of 1946 and other existing
legislations at present as refugees are those persons who are in need of humanitarian
assistance and treating them as foreigners or aliens would result in grave injustice and
violation of human rights. Specific legislation regarding the welfare of refugees and for
safeguarding their rights by ensuring the creation of a regulated process of refugee status
determination coupled with proper reception and assistance facilities would definitely
guarantee a fair treatment to persons seeking refuge.
98 Gorlick, Brian and Rizvi, Sumbul, Refugee Protection as Human Rights Protection: International Principles and Practice in India, (1997) 2 I.H.L&R.L. 341.
[35]
It is true that India is not a party to the 1951 Refugee Convention or the 1967
Protocol, but it should be admitted that India has respected the philosophy behind the
Convention and the Protocol which is very evident from the practice that is being
followed in the protection of refugees in India. One main reason for arguing that the 1951
convention should be enforced in the Indian context is the lack of protection afforded by
the UNHCR. Apart from the difficulties faced in regard to legal recognition, the refugees
also have to undergo harassment and discrimination from the government, police and
local community groups. They also find it extremely difficult to integrate with the local
community. It is the 1951 Refugee Convention that has brought the UNHCR into
existence. It is rather confusing to see that India is a member of UNHCR‘s Executive
Committee and also allows the office of UNHCR to function in the capital state but still
refuses to sign the 1951 Refugee Convention. Moreover, the UNHCR certificates issued
after proper identification and verification should be given due validity and should be
made legally enforceable in India. The Judiciary should also be active and should take a
bold stand to review the executive acts under the 1946 legislation.
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3. COPYRIGHT AND DIGITAL WORLD
By: Dhara Doshi99
Introduction
“That ideas should freely spread from one to another over the globe, for the
moral and mutual instruction of man, and improvement of his conditions, seems to have
been peculiarly and benevolently designed by nature, when she made them, like fire,
expandable over all space, without lessening their density in any point, and like the air in
which we breathe, move and have our physical being, incapable of confinement or
exclusive appropriation.”
- Thomas Jefferson
“Only one thing is impossible for God: To find any sense in any copyright law on
the planet.”
- Mark Twain
The primary purpose of copyright is not to reward the author, but to secure ―the
general benefits derived by the public from the labours of the authors‖.100
The grant of a
limited monopoly to authors is predicated on the premise that the public benefits from the
creative activities of the authors. The exclusive rights granted to the copyright owner are
a necessary condition to the full realization of such creative activities. 101
Copyright initially developed in response to the printing press and gradually
evolved to encompass other methods of mechanically storing and reproducing works of
authorship, such as photography, motion pictures, and sound recordings. The advent of
broadcasting – the ability to perform works at distant points – led to the expansion of
copyright to encompass exploitation of creative expression in new markets. The digital
revolution represents the third distinct wave of technological that portends significant
changes in copyright protection and represents possibly the most profound challenge to
copyright law. It also actuates lobbyists, legislators, jurists, and scholars to rethink the
legal regimes governing these activities and industries. This evolution, though, has
exacerbated the tension between copyright holders, technology companies and consumers.
99
NALSAR University of Law, Hyderabad (AP), LLM II Year (Semester IV – Academic Year 2012- 14) 100
Fox Film Corporation v. Doyal, U.S. 123, 127 (1931) 101
Gasaway, Laura N., Copyright Basics: From Earliest Times to the Digital Age, 2009-2010 (10) Wake
Forest Intell. Prop. L.J., p.241.
[37]
This four-way tension is an important driver for business. When it is balanced, it provides
all the benefits of a market-driven economy. When some part of this digital media
ecosystem gains a disproportionate measure of influence, the system tends to flounder
until balance is restored.
In the digital world everyone is a publisher or producer. From the occasional
blogger to the amateur photographer, new media tools and outlets are changing the way
that we create, publish and share information. Copyright is one of the battlefields of the
digital age, with the ability to rapidly copy and distribute works via digital channels
challenging 20th century industries that have relied on traditional copyright laws to profit
and thrive. It is also a key area for governments, who vary in their approach to copyright
around the world.
The IPR legislations generally aim at a three-level protection, viz, legal- through
legislations like copyright laws; technological- through digital rights management
systems (DRMS); and legal protection to help technological protection- through
prohibition of acts of circumvention of copyright laws.
Technologies have been developed to protect the content through watermarking,
finger printing and tamper- proof hardware and software; access control by user ID and
password; content use through disabling printing and downloading, copying specified
number of times only and restricting copying through originals only.
However, despite comprehensive legislations with regard to the same, regulation
of digital content has been far from reality. Before assessing this scenario, another basic
question needs to be answered, i.e, whether regulation is desired at all? In the course of
the paper, the researcher has tried to analyze the different issues that have arisen with
regard to copyright in the digital arena, in the light of various stakeholders.
Evolution of Digital Technology and Its Impact on Traditional Notions of Copyright
Law:
For over three centuries, copyright protection has played a considerable role in the
cultural, intellectual and economic history of European society. By the late nineteenth
century, intellectual property protection in general had become a staple feature of bilateral
and multilateral commercial treaties and steadily gained importance in relations between
major economic powers. Yet, it was only close to the end of the twentieth century, with
[38]
the conclusion of the TRIPS Agreement in 1994 that the foundation was laid for a true
international ―system‖ for intellectual property protection.
It was no surprise that the premier copyright treaty, the Berne Convention for the
Protection of Literary and Artistic Works (Berne Convention), formed the substance of
the copyright provisions of the TRIPS Agreement. However, the earlier multilateral
system had lacked, among other things, an overarching set of principled objectives to
guide the development of meaningfully balanced international copyright norms. Today,
the combined effect of the TRIPS Agreement, the World Intellectual Property
Organization‘s (WIPO), Copyright Treaty (WCT), 1996, Performances and Phonograms
Treaty (WPPT) and a spate of bilateral and regional free trade agreements (FTAs) have
produced an extensive layer of substantive rules to protect creative expression on an
increasingly uniform legal foundation.
The Threat Posed By Digital Technology:
In a study102
titled, ―Copyright and access to information in the digital
environment‖, the challenge thrown by the digital age was very aptly captured: ―The
digitalization and circulation of works over networks such as the internet means that low-
cost, high quality copies can be made quickly, and these copies can be sent to many other
people around the world, irrespective of borders. Furthermore, digital works are easily
altered, or even falsified, which means that there are many potential threats to the moral
rights of authors. Given these facts, it is not surprising that copyright is one of the areas to
have attracted the attention of the international community.‖ So if we look at the
industries, which are threatened because of ease of causing such copyright infringement,
are publishing software and entertainment.
Mrs Pratibha M. Singh103
opines that the chances of copyright violations in the
multimedia space is huge as ―with the advent of technology, Internet and mobile devices
have evolved into providing an altogether new platform for entrepreneurs to market and
sell their product/ services enabling them to reach out global markets and customers at
102
The study was conducted by Severine Dusolliert, Yves Poullet and Mireille Buydens at the request of the
Sector of Communication, Information and Informatics of UNESCO as a working document for the third
UNESCO International Congress on Ethical, Legal and Social Changes of Cyberspace (Info ethics 2000). 103 IP Legislator and Managing Partner, Singh and Singh, New Delhi
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nominal costs. In this background, some of the copyright issues faced in the context of the
multimedia space by small entrepreneurs are as follows:
Copyright Issues in Digital Environment:
1. Illegal advertisement on website without the permission of the author of such
work ;
2. Illegal use of music/ tunes/ sound recordings without the permission of the author
of such work;
3. Illegal use of literary or such other work without the permission of the author of
such work.
Such illegal use without the permission of the author would result in the
infringement of the copyright in such work.
New Works and its Impact:
Computer Programmes:
The widespread application of digital technologies has also given birth to certain
identifiable new works like computer programs, databases and multimedia works which
initially raised many doubts about their coverage under the copyright laws.
Legal protection for computer hardware is usually provided by patent or trade
secret; this combination served fairly well to protect major hardware advances, as well as
more-incremental developments. Protection for computer programs does not fit neatly
within the traditional forms of intellectual property. As a result, the process by which
software developers and users, the courts, and policymakers have attempted to determine
what should or should not be protected, and what is or is not protected, has been
controversial.
Discussions at the Uruguay Round of multilateral Trade Negotiations finally put a
seal on these debates when the TRIPs incorporated the provision, “computer programs,
whether in source or object code, shall be protected as literary works under the Berne
Convention”.
Impact on Users:
Recent changes to copyright laws have given increased power to the content
industries at the expense of ordinary citizens. In the light of various changes, certain
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groups have emerged that believe that copyright laws have gone too far by depriving
citizens of the rights they had almost for two centuries. These groups consider it as their
goal to restore the balance of copyright law so that the artists and creators can prosper
while citizens have reasonable flexibility to use content in fair and legal ways.
To the owner, copyright is about controlling the reproduction and distribution of
works and the internet has been described as the world‟s biggest copy machine. The
internet and PCs equipped with CD-ROMs and CD burners have a profound impact on
the music industries. And with the arrival of the MP3 file format and popularization of
P2P file sharing through NAPSTER and its progeny, the industry faces further challenges.
While it might appear that the industry has clung to traditional business models,
experiments are under way. The various industries which have really been affected with
the advent and development of internet are the films industry, television industry,
publishing industry, etc.
Evolution in USA:
The evolution in the US began on a large scale with the passing of the Audio
Home Recording Act (AHRA) of 1992.
A significant problem was that many devices did not fall within the purview of
AHRA, 1992. The Act covered “digital audio recording devices”, but excluded many
others104
like, computer hard drives, video home recording devices105
, new devices such
as MP3 players, etc. Companies that provided file sharing services to consumers tried
unsuccessfully to use in their defence the safe harbour provisions in AHRA. Accordingly,
the AHRA gradually became irrelevant to legal conflicts involving the digital distribution
of music.”
The No Economic Theft (NET) Act, signed into law in December, 1997,
criminalized the distribution of pirated software. The Computer Fraud and Abuse Act
(CFAA) is another statute providing broad prohibitions against tampering with or
otherwise violating computers or computer systems other than your own. This statute has
been invoked most notably against search robots and entities sending ―spam‖ e-mail.
104 17 U.S.C. 1008 105 Consumer home recording from VCR devices for later playback is protected under the fair use doctrine as the Supreme Court ruled in Sony Corp of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
[41]
The Digital Millennium Copyright Act (DMCA)106
strengthened the protections
against unauthorized access to copyrighted material, and provides an additional layer of
legal protection to copyright holders beyond the protections granted by the Copyright Act.
The DMCA makes it a crime to circumvent the technological measures that control
access to copyrighted works. It also criminalizes the manufacture of and distribution of
any technology, a direct hit at halting piracy of copyrighted works in a digital format.
However, the restrictions apply even to individuals who create or use a circumvention
tool to make a legal or fair use of encrypted material. While there are a few exceptions,
the provisions do not adequately protect users who want to make legitimate use of
copyrighted materials.
Digital Rights Management (DRM):
Digital rights management (DRM) is a class of controversial access control
technologies that are used by hardware manufacturers, publishers, copyright holders, and
individuals with the intent to limit the use of digital content and devices after sale.
Companies such as Amazon, AT&T, AOL, Apple Inc., BBC, Microsoft, Electronic Arts,
and Sony use DRM. In 1998, the Digital Millennium Copyright Act (DMCA) was passed
in the United States to impose criminal penalties on those who make available
technologies whose primary purpose and functions are to circumvent content protection
technologies.107
DRM technologies enable content publishers to enforce their own access policies
on content, like restrictions on copying or viewing. In cases where copying or some other
use of the content is prohibited, regardless of whether or not such copying or other use is
legally considered a "fair use", DRM technologies have come under fire. DRM is in
common use by the entertainment industry. Many online music stores, as well as many e-
book publishers also use DRM. DRM techniques include: Restrictive Licensing
Agreements, Encryption, Scrambling of expressive material, and embedding of a tag.
106 See http://www.loc.gov.in/copyright/legislation/hr2281.pdf. 107 Digital Millennium Copyright Act, 112 Stat. 2863, 17 U.S. Code 1201–1205.
[42]
DRM and Computer Games:
Computer games sometimes use DRM technologies to limit the number of
systems the game can be installed on by requiring authentication with an online server.
This not only limits users but can also prove to be a problem if the user has to
unexpectedly perform certain tasks like upgrading operating systems or reformatting the
computer's hard drive, which make the game potentially unusable after a certain period
even if it is only used on a single computer. Bohemia Interactive have used a form of
technology since OFP, wherein if the game is suspected of being pirated, bugs like guns
losing their accuracy or the players being turned into a bird are introduced. Croteam,
released Serious Sam 3: BFE, which implemented a different form of DRM wherein, it
causes a foe in the game to become invincible and constantly attack the player until the
player is dead. Grand Theft Auto IV, made by Rockstar games is another example.
DRM and Documents:
Enterprise digital rights management (E-DRM or ERM) is the application of
DRM technology to the control of access to corporate documents such as Microsoft Word,
PDF, and AutoCAD files, emails, and intranet web pages rather than to the control of
consumer media. E-DRM, now more commonly referenced as IRM (Information Rights
Management), is generally intended to prevent the unauthorized use of proprietary
documents.
DRM and E-Books:
Electronic books read on a personal computer or an e-book reader typically uses
DRM technology to limit copying, printing, and sharing of e-books. E-books are usually
limited to a certain number of reading devices and some e-publishers prevent any copying
or printing. Some commentators believe that DRM makes E-book publishing complex.
DRM and Films:
An early example of a DRM system is the Content Scrambling System (CSS)
employed by the DVD Forum on film DVDs. CSS uses an encryption algorithm to
encrypt content on the DVD disc. Manufacturers of DVD players must license this
technology and implement it in their devices so that they can decrypt the encrypted
content to play it. The CSS license agreement includes restrictions on how the DVD
[43]
content is played, including what outputs are permitted and how such permitted outputs
are made available. This keeps the encryption intact as the video material is played out to
a TV. In 1999, Jon Lech Johansen released an application called DeCSS which allowed a
CSS-encrypted DVD to play on a computer running the Linux operating system, at a time
when no licensed DVD player application for Linux had yet been created.
Microsoft's Windows Vista contains a DRM system called the Protected Media
Path, which contains the Protected Video Path (PVP). PVP tries to stop DRM-restricted
content from playing while unsigned software is running in order to prevent the unsigned
software from accessing the content.
Advanced Access Content System (AACS) is a DRM system for HD DVD and
Blu-ray Discs developed by the AACS Licensing Administrator, LLC (AACS LA), a
consortium that includes Disney, Intel, Microsoft, Matsushita (Panasonic), Warner
Brothers, IBM, Toshiba and Sony. In December 2006 a process key was published on the
internet by hackers, enabling unrestricted access to AACS-protected HD DVD content.
After the cracked keys were revoked, further cracked keys were released.
DRM and Music:
a) Audio CDs:
Discs with digital rights management schemes are not legitimately standards-
compliant CDs but are rather CD-ROM media. Therefore these CDs could not be played
on all CD players. Many consumers could also no longer play purchased CDs on their
computers. In 2005, Sony BMG introduced new DRM technology which installed DRM
software on users' computers without clearly notifying the user or requiring confirmation.
Sony BMG's DRM software actually had only a limited ability to prevent copying, as it
affected only playback on Windows computers, not on other equipment. In January 2007,
EMI stopped publishing audio CDs with DRM, stating that "the costs of DRM do not
measure up to the results." Following EMI, Sony BMG was the last publisher to abolish
DRM completely.
[44]
b) Internet Music:
Many online music stores employ DRM to restrict usage of music purchased and
downloaded online. Some examples worth noting are that of Apple's iTunes Store which
utilized the Fair Play DRM system for music. Apple did not license its DRM to other
companies, so only Apple devices could play iTunes music108
, Napster music store which
offered a subscription-based approach to DRM alongside permanent purchases(As of
June 2009, Napster is offering DRM free MP3 music, which can be played on iPhones
and iPods), online music download service called "Connect" operated by Sony, etc.
c) DRM and Television:
The Cable Card standard was used by cable television providers in the United
States to restrict content to services to which the customer has subscribed.
The Case of Adobe E-Books109
Dmitry Sklyarov, a Russian citizen employed by the Russian company ElcomSoft
visited the United States to give a presentation DEF CON convention in Las Vegas,
Nevada. On July 16, 2001, as he was about to return, Skylarov was arrested by the FBI
and jailed for allegedly violating the United States' DMCA (of 1998) by writing
ElcomSoft's Advanced eBook Processor software.
The original issue came to the attention of prosecutors when Adobe Systems, a US
company, complained that copy protection arrangements in its e-book file format were
being illegally circumvented by ElcomSoft's product. Adobe withdrew its complaint, but
United States Department of Justice prosecutors declined to likewise drop the charges.
ElcomSoft's product, and thus presumably the efforts of its employees including Sklyarov,
108
The DRM Graveyard: A Brief History of Digital Rights Management in Music; www.opensource.com, 3
November 2011. Retrieved 14-07-2013. 109
United States v. ElcomSoft and Dmitry Sklyarov was a 2001-02 criminal case in which Dmitry Sklyarov
and his employer ElcomSoft were charged with trafficking in, and offering to the public, a software
program that could circumvent technological protections on copyrighted material, in violation of Section
1201(b) (1) (A) & (C) of Title 17 of the United States Code (the Copyright Acts, including most of the
Digital Millennium Copyright Act), as well as Sections 2 (Aiding and Abetting) and 371 (Conspiracy) of
Title 18, Part I, of the United States Code (the Federal Criminal Code).
[45]
were entirely legal in Russia. Sklyarov was eventually released on bail, but forced to
remain in California. The case raised some concerns and thus, it showed the extra-
territorial reach of the trafficking provisions of the DMCA: although the development of
the software was in Russia and the marketing was all over the World Wide Web, Mr
Sklyarov fell afoul of United States legislation.
Watermarks:
Digital watermarks are features of media that are added during production or
distribution. Digital watermarks involve data that is arguably steganographically
embedded within the audio or video data.
Watermarks can be used for different purposes that may include:
recording the copyright owner
recording the distributor
recording the distribution chain
identifying the purchaser of the music
Watermarks are not complete DRM mechanisms in their own right, but are used
as part of a system for DRM, such as helping provide prosecution evidence for purely
legal avenues of rights management, rather than direct technological restriction. Some
programs used to edit video and/or audio may distort, delete, or otherwise interfere with
watermarks. Signal/modulator-carrier chromatography may also separate watermarks
from original audio or detect them as glitches. Use of third party media players and other
advanced programs render watermarking useless. Additionally, comparison of two
separately obtained copies of audio using simple, home-grown algorithms can often
reveal watermarks.
Anti-Circumvention Laws:
Traditional copyright law was functioning efficiently until the advent of digital
media. The evolution of digital media has broken many barriers of communication and
has reduced the cost of producing new copies to zero. Digital rights are not different from
the traditional rights possessed by a copyright owner. Though the digital media provides
commercial advantages to the copyright owner, those advantages could be a nullity
[46]
because easy reproduction and distribution of digital works increases piracy and
uncontrolled proliferation of copyrighted works. In order to prevent piracy and to track
the proliferation of copyrighted works, DRM systems such as encryption, watermarking,
fingerprinting and so on have evolved. New technologies like the Windows Media Rights
Manager (WMRM) protect digital audio and video content not only until files are
transferred to the user but also even after they are transferred. Microsoft‘s Palladium is
another example of how strong DRM technologies would be in the near future.
Though DRM systems are getting stronger by the day, someone would definitely
find a way to break them and that would result in free distribution of the content without
the copyright owner‘s authority. In order to prevent breaking/circumvention of the DRM
systems the support of law is very essential. Anti-circumvention laws provide strong
protection to the copyright owners but they deprive the public of the rights they have over
the copyrighted works. As circumvention would be illegal, any such measures to make
fair use of the work would also be illegal, thus depriving the public of their right to free
use. Therefore, the anti-circumvention laws give rise to a conflict in this modern era
which springs bad consequences. The world is today struggling to find an amicable
solution to this problem. Under such circumstances this paper explores the need for an
anti- circumvention law in India and other developing countries. International treaties like
WCT and WPPT obligate the member states to provide for laws prohibiting
circumvention of digital rights management systems.
United States of America:
US government has implemented the international treaties by passing the Digital
Millennium Copyright Act (DMCA) in the year 1998. Section 1201 prohibits
circumvention of technologies that effectively control access to works protected under
title 175. It also prohibits manufacture, import, sale or other traffic in any product, service,
device, component or part, which is primarily designed or produced for the purpose of
circumvention or which has a limited use other than circumvention. Exemptions have
been provided in the section for non-profit library, archives, or educational institution to
gain access to a commercially exploited copyrighted work solely in order to make a good
faith determination of whether to acquire a copy of that work. Exceptions have also been
[47]
provided for reverse engineering, encryption research, minors and security testing. The
stringent provisions of DMCA have led to a large number of unintended consequences
like arrest of scientists, numerous law suits, stoppage of research, etc.
European Union:
The European Union Directive on copyright and related rights in the information
society was adopted by the European parliament in the year 2001 with an aim to
implement the provisions of WCT and WPPT. The Directive mandates the
implementation of the WIPO treaties by EU member states.
India:
The copyright Amendment Act, 2012 has been enacted by the Government of
India bringing changes to the Copyright Act, 1957. The amendments make Indian
Copyright law compliant with the Internet treaties, WCT and WPPT ―to the extent
considered necessary and desirable‖. The Act includes two new Sections 65A110
and
65B111
to punish persons found guilty of piracy by using technology to take away
somebody‘s copyright and then use that material to make profits. This amendment
conforms to Article 12 of WCT and the Article 19 of the WPPT relating to rights
management information. The introduction of Sections 65A and 65B is expected to help
the film, music and publishing industry in fighting piracy.
Does India Need Digital Rights Management Provisions or Better Digital Business
Management Strategies?
While a comparative analysis of the new DRM provisions with similar legislation
in the US and the EU shows a relatively better approach that reduces the detrimental
effects posed by DRM provisions, the critical question that this paper poses from a law
and economics perspective is whether India really needs such legislation. The paper
110
Any person who circumvents an effective technological measure applied for the purpose of protecting
any of the rights conferred by this Act, with the intention of infringing such rights, shall be punished with
imprisonment for up to two years and shall also be liable to pay a fine under Section 65A (1). 111
Any person who knowingly removes or alters any rights management information without authority, or
distributes, imports for distribution, broadcasts or communicates to the public without authority copies of
any work or performance knowing that electronic rights management information has been removed or
altered without authority shall be punished with imprisonment for up to two years and shall also be liable to
pay a fine under Section 65B (1).
[48]
argues that the new DRM provisions are against the interests of India for three major
reasons. First, the legislature has adopted the legislation without engaging in a proper
cost-benefit analysis of the DRM provisions in India. Second, the nature of piracy in India
currently does not warrant such legislation. Third, the new DRM provisions will create a
para-copyright regime, defeating some of the basic objectives of copyright protection.
The paper argues that the need of the time is better digital business management strategies
and a better enforcement of the rights already guaranteed under the copyright law, rather
than adoption of new DRM provisions under the copyright law.
What is required at this point of time is better enforcement of the rights already
guaranteed to the copyright holders, rather than importation of new TRIPS+ standards.
With better use of the existing copyright remedies like doctrine of contributory
infringement, India can provide sufficient protection for the right holders in the digital
world and ensure that balance of the copyright system is not tinkered.
Data from recent international survey, which compared the willingness to pay for
mobile contents among consumers from different countries, should act as further
incentive for the right holders to explore new business models. The data shows that the
total percentage of respondents who were willing to pay for at least some mobile contents
were as high as 65% in India, when compared to 57% from BRIC countries and 22%
from G7 countries.112
More interestingly, the percentage of consumers who agreed to the
statement that “No, I would not be willing to pay for access to the site content and would
look for the same or similar content elsewhere through a free site” were as high as 78%
in G7 countries and 43% in BRIC countries, whereas it was just 35% in India. This
provides a strong message to the Indian information industry. The need of the time is
future looking digital business management strategies. Only such measure can win the
long battle against piracy and increase the overall welfare in the society.113
112
KPMG International, Consumers and Convergence IV (KPMG International), 2010,
http://www.kpmg.co.il/e-vite/3b.pdf, 12-13and KPMG, Hitting the High Notes:FICCI-KPMG Indian Media
& Entertainment Industry Report 2011, p.82. 113
Scaria, Arul George, Does India Need Digital Rights Management Provisions or Better Digital Business
Management Strategies?, Journal of Intellectual Property Rights, Vol. 17, September 2012, pp.463-477.
[49]
From Pirates to Patriots: Fair Use for Digital Media:
Technologies, laws, and policies developed in recent years make it impractical
and even illegal to use media in ways that have been the right of private citizens, the press,
and academics for more than 200 years. Copyright laws, such as the DMCA Act passed
by the US Congress in 1998, have imperiled the professional activities of computer
scientists who merely wish to publish articles that analyze technical protection measures
and countermeasures for digital media copyright.
As researchers working in the field of digital media technology, we have a keen
interest in ensuring our freedom to conduct research without being blindsided by
developments in IP law and policy. Further, we need to be aware that our own research
and development—especially in areas concerning digital media copyright protection—
may in fact limit our freedom to research and develop these and other digital media
technologies.
The dangers of current and proposed legislation to our freedom to research,
develop, and publish about digital media technologies requires a fundamental shift in our
research focus. We need to invent technologies that aren‘t designed to protect copyright
in a way that makes the exercise of fair use rights impossible.
The US Constitution sets forth the framework for subsequent copyright (and
patent) law by authorizing Congress ―to promote the progress of science and useful arts,
by securing for limited times to authors and inventors the exclusive right to their
respective writings and discoveries.‖ Copyright law addresses the writings of authors and,
as stated in the US Code, copyright protection applies to ―original works of authorship
fixed in any tangible medium of expression [...].‖In addition, copyright law has long been
consistent with the values of freedom of speech and expression articulated in the First
Amendment to the US Constitution.
Copyright law has been designed as a trade-off between two potentially
competing goals—protecting the writings of authors long enough so that they can obtain
[50]
financial reward for their work and the unimpeded access to writings so as to support
public discourse and ―promote the progress of science and the useful arts.‖ The time-
limited nature of copyright is a key component of its design so that copyrighted works
enter the public domain after the expiration of copyright protection.
Fair Use:
An additional and essential mechanism to promote the public good of access to
and use of copyrighted works is the Fair Use Doctrine, described in the US Code (Title 17,
Chapter 1, Section 107). The case law has extended fair use in a variety of ways including
time-shifting, space- and format shifting, and reverse-engineering software to create
interoperable programs. The determination of whether a use of copyrighted materials is a
fair use has been made by the courts on a case-by-case basis according to an analysis of
four factors described in the US Code:
(1) The purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit educational purposes;
(2) The nature of the copyrighted work;
(3) The amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) The effect of the use upon the potential market for or value of the copyrighted
work.
Determining fair use is even more complex because of the differing interpretations
various legal scholars have of it. When understood as an affirmative right, fair use is a
necessary and integral part of copyright law that protects the constitutionally guaranteed
rights of individuals to free speech and free expression.
If fair use is understood as a defence, then copyright owners, and technologies that
empower them, can control our access to digital media so that fair use will simply no
longer be an option available to the public. Copyright owners would then dictate access to
and use of digital media. Imagine not being able to browse through, excerpt, share, or
make private non-commercial copies of copyrighted works without explicit permission
from copyright holders. To avoid that scenario, the legal and policy communities need
input from technologists to help make sound laws and policies.
[51]
Technology:
Digital media technology has brought about profound changes in the production
and distribution of information that have far-reaching consequences for copyright law and
policy. While this transformative aspect of digital media is seen as a threat to copyright
and technological protection measures, it‘s the transformative nature of digital media that
holds the greatest promise for preserving our fair use rights. Writing for the unanimous
opinion of the Supreme Court in Campbell v. Acuff-Rose Music (the fair use of Live
Crew‟s rap parody of Roy Orbison‟s popular song “Oh, Pretty Woman”), Justice Souter
stated,
“The central purpose of this investigation is to see [...] whether the new work [...]
adds something new, with a further purpose or different character, altering the first with
new expression, meaning, or message; it asks, in other words, whether and to what extent
the new work is “transformative.”
In short, the digital rights our technologies should be striving to protect are those
of users, not those of data. To work toward that goal, we can develop technologies that
support and enhance the transformative aspects of digital media by making them more
accessible more accessible and reusable through the creation and use of media metadata.
Most mainstream and envisioned popular applications for digital media have
focused on recording, transmitting, or finding entire works (for example, TiVo, Napster,
or video on demand), rather than transforming works to make new ones. Applications that
could easily recombine personal media with elements from popular and public media
offer new vistas for copyright law and policy to explore.
Media Use:
A fundamental process in human communication is the way we use the elements
of language and culture for purposes other than those for which they were originally
intended. The Russian literary theorist Mikhail Bakhtin describes this bricolage of
language as follows: The word in language is half someone else‘s. It becomes ‗one‘s own‘
only when the speaker populates it with his own intention, his own accent, when he
appropriates the word, adapting it with his own intention, his own semantic and
expressive intention. Prior to this moment of appropriation, the word does not exist in a
[52]
neutral and impersonal language, but rather it exists in other people‘s mouths, in other
people‘s intentions: it is from there that one must take the word, and make it one‘s own.
Imagine this fundamental dialogism of language colonized by current copyright
law: we could barely speak to one another for fear of infringing the copyright of other
people‘s words. Such a state of affairs is the antithesis of promoting the progress of
science and useful arts and freedom of speech and expression, but today‘s digital
copyright protection laws, policies, and technologies are leading us to this silent desert.
However, we have an alternative. We can help create a future in which digital media are
the rich soil for cultural production aided by policies and technologies that let authors
receive protection and remuneration for their works and at the same time promote their
fair use.
Fans of popular media have been transforming their favourite TV shows into
personally meaningful new works for many years. Henry Jenkins of the Massachusetts
Institute of Technology Comparative Media Studies Program studies and analyses fan
cultural production. He‘s observed that all across America, housewives, nurses, librarians,
and others create new cultural artefacts by critiquing, extending, and personalizing works
of popular media (for example, making a music video from episode clips to reveal the
homoerotic subtext of the relationship between Star Trek‘s Captain Kirk and Mister
Spock).What some copyright holders see as mere piracy, we can understand as a
transformative and fair use of copyrighted media.
Fan (re)use of popular media is a provocative and important example of how
digital media could serve as a resource for new forms of private and public discourse that
(re)use the most important and abundant materials of our culture— motion pictures, TV,
video, and audio.
Fair Use in Digital Works in India – The Recent Amendment:
Fair use provisions have been extended to the digital environment. Any transient
and incidental storage of any work through the process of ―caching‖ has been provided
exceptions as per the international practice. Any deliberate storing of such works and
[53]
unauthorized reproduction and distribution of such works is an infringement under
Section 51 of the Act attracting civil and criminal liability. Exceptions under this section
have been extended to education and research purposes as works are available in digital
formats and in the internet.
An explanation has been inserted to clause (1) (a) of Section 52 to clarify that
storing of any work in any electronic medium for the specified purposes, including the
incidental storage of a computer programme which in itself is not an infringing copy,
shall not be infringement.
A new clause (b) in section 52 seeks to provide that transient and incidental
storage of a work or performance purely in the technical process of electronic
transmission or communication to the public shall not constitute an infringement of
copyright. Similarly, clause (c) provides that transient and incidental storage of a work or
performance for the purposes of providing electronic links, access or integration has not
been expressly prohibited by the right holder, shall not be infringement. To facilitate
digitalization of libraries, a new clause (n) has been introduced to enable storage of a
digital copy of a work if the library possesses a non-digital version of it.
Emerging International Instruments:
Since the advent of commercial Internet services almost 20 years ago, there have
been many debates about proposals to regulate services provided online. The most heated
debates have touched on hot button issues like Privacy, Security, Pornography and
Censorship. But never has there been a debate in this context as heated, emotional and
transatlantic as the debate during last few years about efforts to protect online copyright
with the Stop Online Piracy Act (SOPA) and the Anti-Counterfeiting Trade Agreement
(ACTA)114
. This is because both these texts touched all of this hot button issues at once-
and because SOPA and ACTA could have profound implications for the evolution of the
internet and the services provided over it.
114
It is a proposed plurilateral agreement for the purpose of establishing international standards on
intellectual property rights enforcement.
[54]
The SOPA and PIPA have been put on hold. But the Online Protection and
Enforcement of Digital Trade Act (OPEN Act) is moving its way through the US House
of Representatives. The OPEN Act would allow copyright holders to file complaints
about copyright infringement on foreign websites with the US International Trade
Commission, which would investigate the complaints and decide whether US payment
processors and online advertising networks should be required to cut off funding. The
OPEN Act would apply only to foreign websites whereas SOPA and PIPA would enable
content owners to take down the website even if one page carried infringing content.
Conclusion
The characteristics of the digital technology at the root of digital dilemma are
undisputed. By reducing information to 0s and 1s, digital representation revolutionizes
the characteristics of content. First, digital representation frees content from the need for a
tangible medium to distribute it. In the past, content could be conveyed to the public only
through physical media and the physical media had limited its distribution and copying.
Distributing copyrighted works in the form of books, CDs and videos was similar to the
distribution of wine. In order to distribute wine to the public, one needed bottles. Even if
wine was plentiful, bottles were not. In contrast, the data representing a recent hit song, a
new-born‘s picture or a scholar‘s work in progress no longer need to be carried in plastic
or on paper. Digital information can be conveyed without the need of a bottle.
As this paper has analyzed, there is a gulf between the computer users on one
hand and legislators on the other. Legislative provisions are often not wholly suited to the
technical issues that they are addressing while computer users may bemoan the increasing
influence that IP has on their work, legislation affecting such users- in some cases to their
detriment- is still being proposed and being drafted. A dialogue needs to be established
across the chasm of understanding that separates the computing community from the legal
community. An open discourse between the two sides will inform future actions on both
sides and make future legislation and future political decisions in this area less
problematic.
[55]
Suggestions - How to Avoid Infringement at all?:
The entrepreneurs may avoid being either the victim or a perpetrator of copyright
infringement by doing the following:
1. Be original
2. Obtain necessary licenses
3. Obtain registration for every work created
It can be said that the knowledge of the dos and don‘ts will serve a great purpose
in protection, particularly of the small entrepreneurs. The small entrepreneurs must
remember that though fair use of copyrighted work is permitted but such use should never
be done for commercial gain. The moment element of commercial gain gets into the ―fair-
use‖, the infringement occurs and one may risk civil and criminal liability.
[56]
4. LIMITATIONS TO THE JURISDICTION OF
INTERNATIONAL COURT OF JUSTICE
By: Puja Kumar115
& Arpita Sharma116
Introduction
The International Court of Justice is the principal judicial organ of United Nations
Organization. It was established in June, 1945 by the charter of the United Nations and
began its work in April 1946. The seat of the court is at The Peace Palace in The Hague
(Netherlands). The court‘s role is to settle, in accordance with the International law, legal
disputes submitted to it by the States and to give advisory opinions on questions referred
to it by authorized United Nations Organs and specialized agencies. The court cannot
formally create law as it is not a legislative organ.117
The jurisdiction of International
Court of Justice falls into two distinct parts:
1. Contentious Jurisdiction
2. Advisory Jurisdiction.
Contentious Jurisdiction is the capacity to decide disputes between States and
advisory jurisdiction is its capacity to give advisory opinions when requested to do so by
particular qualified entities. The court has mentioned that the issue regarding the
establishment of jurisdiction is a matter for the court itself. However, it is for the parties
to the case to prove a fact but the question as to the jurisdiction is the question of law and
it is the court who is supposed to work it out in the light of the relevant facts.118
Further,
Jurisdiction has to be decided at the time that the act instituting proceedings was filed, so
that if the court had jurisdiction at the date, it will continue to have jurisdiction
irrespective of subsequent events.119
The court is at liberty for selecting the ground upon
which it will rest as judgment and when its jurisdiction is challenged on diverse ground, it
has the liberty to rest its decision on one or more grounds of its own, selecting in
115
3rd Year student, B.B.A. LL.B., College of Legal Studies, University of Petroleum & Energy Studies,
Dehradun, Uttarakhand, India; email: [email protected]. 116
3rd Year student, B.A. LL.B., College of Legal Studies, University of Petroleum & Energy Studies,
Dehradun, Uttarakhand, India; email: [email protected]. 117
See The Fisheries Jurisdiction case, ICJ Reports, 1974, pp. 3, 19;55 ILR, pp. 238, 254. 118
See The Fisheries Jurisdiction case (Spain v. Canada), ICJ Reports, 1998, pp.432, 450; 123 ILR, pp.
189, 210-11. See also, The Armed Actions case (Nicaragua v. Honduras), ICJ Reports, 1988, p. 76; 84 ILR,
p. 231 and Serbia and Montenegro v. U.K., ICJ Reports, 2004, pp. 1307, 1322. 119
See Democratic Republic of the Congo v. Rwanda, ICJ Reports, 2006, pp. 6, 29. However, the court has
held that it would not penalize a defect in procedure which the applicant could easily remedy.
[57]
particular ―the ground which in its judgment is more direct and conclusive.‖120
Once the
court has reached a decision on jurisdiction that decision operates as res judicata121
, that
means it becomes final and is binding in nature on parties.
Limitations:
As per Article 34 of the statute of the court only States may be parties in case
before court. It is of significant importance as it proves to be a bar for taking recourse to
court by private persons and international organizations, except in the case that some of
the international organizations may be able to obtain the advisory opinion of the court.
The court is open for all the parties to the statute. Article 93 of the UN Charter provides
that all members are ipso facto parties to the statute of the ICJ and that non-members of
the UN may become a party to the statute on conditions laid down by General Assembly
upon the recommendations of the Security Council.
Article 35 (1) of the Statute states that the court shall be open to the States parties
to the Statute, or as the court itself has stated, ―the court can exercise its judicial functions
only in respect of those states which have access to it under Article 35. It means only the
States which are parties to the Statute can confer jurisdiction upon it.122
Serbia and
Montenegro vs. U.K.123
, the court concluded that Serbia and Montenegro could not be
regarded as parties to the statute at the time of the application.124
The court has certain
inherent powers flowing from its role as a judicial organ.125
These would entail in certain
situations the rights of its own motion to bring to an end the proceedings in a case.126
However, this would appear to be restricted to two circumstances:
1. In cases before the adoption Article 38(5) of the rules, where an application is
made without a basis of jurisdiction in the hope that the other state would accept it.
120
Serbia and Montenegro v. U.K., ICJ Reports, 2004, pp. 1307, 1322. 121
See The Genocide Convention case (Bosnia v. Serbia), ICJ Reports, 2007, para 117. 122
Serbia and Montenegro v. U.K., ICJ Reports, 2004, p.1307 at 1326. 123
Serbia and Montenegro v. U.K., ICJ Reports, 2004, pp. 1307 was one of a series of cases brought by the
Federal Republic of Yugoslavia (The pre cursor to Serbia and Montenegro) against NATO countries in
1999, so that the point in question applied to other respondent State. 124
Serbia and Montenegro v. U.K., ICJ Reports, 2004, pp. 1307 was one of a series of cases brought by the
Federal Republic of Yugoslavia (The pre cursor to Serbia and Montenegro) against NATO countries in
1999, so that the point in question applied to other respondent State. 125
See Brown, C., The International Power of International Courts and Tribunals, 76 BYIL, 2005, p. 195. 126
Serbia and Montenegro v. U.K., ICJ Reports, 2004, pp. 1307.
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2. Where the court accedes to the request of respondent states to remove cases from
the list on the ground of being manifestly lacking in jurisdiction.127
It is a well-established principle that the court is in a position to exercise
jurisdiction over State provided the State has consented to it and therefore it is not in a
position to decide over the rights and liabilities of any third party who is not party to the
proceedings. As a result of it, the court is not in a position to entertain actions between
states that in reality implead a third State without its consent. This rule was underlined in
Monetary Gold Case128
where it was noted that in case legal interest of any third party is
forming the subject matter of the decision the court is not supposed to entertain
proceedings in the absence of the State. In Nicaragua Case, the court noted that the
circumstances of the monetary Gold case ―probably represent the limit of the power of the
court to refuse to exercise its jurisdiction.‖129
In the East Timor Case130
, the court held that it could not rule of the lawfulness of
the conduct of another state which was not a party to the case, whatever the nature of the
obligation in question maybe. The issue also arose in the Nicaragua case, Nicaragua had
declared that it would accept the compulsory jurisdiction of court in 1929, but had not
ratified this. The U.S.A. argued that accordingly Nicaragua never became the party to the
statute of the permanent court and could not therefore rely on Article 36 (5). The court, in
an interesting judgment noted that the Nicaragua Declaration, unconditional and
unlimited to the time had ―a certain potential effect‖ and that the phrase in Article 36 (5)
―still in force could be so interpreted as to cover declarations which has only potential and
not binding effect. It was argued by the court that the ratification of the statute of the ICJ
in 1945 by Nicaragua had the effect of converting this potential commitment into an
effective one.131
127
See Yugoslavia v. Spain, ICJ Reports, 1999, pp. 761, 773-74 and Yugoslavia v. U.S.A., ICJ Reports,
1999, pp. 916, 925-26. 128
ICJ Reports, 1954, pp. 19, 54; 21 ILR, pp. 399, 406. In this case Italy asked the governments of the
U.K., U.S.A. and France should deliver to it any share of the monetary gold that might be due to Albania
under Part III of the Paris Act of 14th
January 1946, as satisfaction for alleged damage to Italy by Albania.
Albania chose not to intervene in the case. 129
ICJ Reports, 1984, pp. 392, 431. 130
ICJ Reports, 1995, pp. 90, 101. 131
The court also noted that since court publication had placed Nicaragua on the list of the states accepting
the compulsory jurisdiction of the ICJ by virtue of Article 36 (5) and that no states had objected, one could
conclude that the above interpretation had been confirmed.
[59]
In Nicaragua v. U.S.A.,132
the ICJ gave decision in favor of Nicaragua and against
the U.S.A., so later U.S.A. blocked the enforcement of the ruling of the ICJ by the United
Nations Security Council and prohibited Nicaragua from realizing any actual
compensation.
What Needs to be Done?:
The court itself is not concerned with the compliance and takes the view that
―once the court has found that or a state has entered into a commitment
concerning its future conduct it is not the court‘s function to contemplate that it
will not comply with it.133
This particular attitude of the ICJ needs to be changed so as to ensure a better
enforcement of the decision of the ICJ.
The voluntary jurisdiction of the ICJ needs to be changed. The jurisdiction can be
extended to that extent which will be acceptable to the state parties to the disputes,
because of this reason the very essence of the decision of the court is lost and it
stands like a decision of mediation as the same is not compulsory and binding in
nature.
Decision of ICJ should be binding in nature irrespective of the fact that whether
the parties to the proceedings have consented to it or not.
The principle behind the concept of having the consent of the third party so as to
determine on the legal rights of the party needs to be changed. If one party is
coming with a grievance against another party then it should become obligatory
on the second party to be answerable to the ICJ in this regard.
The court should also introduce the concept of review of its judgment so as to
avoid any kind of error that might be there because of the fallible characteristic of
humans.
132
ICJ Reports 1986, p.14. 133
The Nuclear Test Case, ICJ Reports, 1974, p. 477.
[60]
Conclusion
Since, International Court of Justice is an international judicial organ so as to
determine the rights and liabilities of States. It has become increasingly important to
ensure the efficacy of its judgment. The court is often criticized for the limitations of its
jurisdiction, so the need of the hour is to increase the effectiveness of the working of the
decision process of the court and to give it a binding nature that may help in a conclusive
determination of the rights and liabilities of the States. To achieve this purpose, the above
recommendations will serve as a guideline to increase the efficiency of the court. The
main problem with the ICJ is its limited operational sphere, coupled with the power
politics between the powerful states. There is also a belief that legal solutions cannot
always be an acceptable one. As such, the activities of the court are thwarted to a great
extent. What can be said is that, despite several weaknesses, the ICJ has played a
significant role in resolving disputes brought before it and has contributed to a steady
development of international jurisprudence.
[61]
5. ENVIRONMENT IMPACT ASSESSMENTS AND
SUSTAINABLE DEVELOPMENT IN INDIA
By: Amit Kumar Pathak134
Introduction
Environmental impact assessment (EIA) refers to a systematic and integrative
process that evaluates the potential impacts of a major project significantly affecting the
environment.135
It is seen as an instrument with the central and ultimate role of achieving
sustainable development.136
An EIA concentrate on problems, conflicts and natural
resource constraints which might affect the viability of a project. It also predicts how the
project could harm to people, their homeland, their livelihoods, and the other nearby
developmental activities. After predicting potential impacts, the EIA identifies measures
to minimize the impacts and suggests ways to improve the project viability.
In other words, we can say that EIA is an exercise to be carried out before any
project or major activity is undertaken to ensure that it will not in any way harm the
environment on a short term or long term basis. Any developmental endeavor requires not
only the analysis of the need of such a project, the monetary costs and benefits involved
but most important, it requires a consideration and detailed assessment of the effect of a
proposed development on the environment.
EIA is based on the Precautionary Principle which says avoid possible dangers.
The EIA is its practical part and it identifies /evaluates the potential beneficial and
adverse impacts of development projects on the environment, taking in to account
environmental, social, cultural and aesthetic considerations and it also requires proof to a
scientific certainty or scientific Consensus, a scintilla of evidence, a wild hunch, or some
other standard.137
134
LL.M, UGC-NET, Dr.Ram Manohar Lohiya National Law University, Lucknow. 135
Zhao ,Yuhong, Assessing the Environmental Impact of Projects: A Critique of the EIA Legal Regime in
China, Natural Resources Journal, Vol. 49, p.486 136
Zhao ,Yuhong, Assessing the Environmental Impact of Projects: A Critique of the EIA Legal Regime in
China, Natural Resources Journal, Vol. 49, p.486 137
Kannan, Phillip M., The Precautionary Principle: More Than A Cameo Appearance in United States
Environmental Law, 31 William and Mary Environmental Law and Policy Review 409 (2007).
[62]
Objectives of Environment Impact Assessment:
The main objective of EIA is to reconcile the possible conflict between
environmental imperatives and developmental needs with a view to promote sustainable
development. EIA guides administrative agencies in balancing conflicting social values
and environmental quality by making best choice among various available options. EIA
foresees potential dangers to environment and manages to avoid them. The Council of
European Economic Committee describes the objectives of EIA as follows:
―The effect of a project on the environment must be assessed in order to take
account of the concerns to protect human health, to contribute by means of a better
environment to the quality of life, to ensure maintenance of the diversity of species and to
maintain the reproductive capacity of the ecosystem as a basic resource of life. According
to EIA, the best environment policy is to prevent adverse impact rather than subsequently
try and counteract it.‖138
Thus, EIA is a preventive exercise in the field of environment protection, which is
ecologically benign and economically viable. Moreover, prevention is always better than
cure and cheaper than remedy.139
Process of Environment Impact Assessment:
The environment impact assessment consists of eight steps with each step equally
important in determining the overall performance of the project.
1. Screening: The screening process determines whether a particular project
warrants preparation of an EIA. In some cases, particularly if the possible impacts of a
project are not known, a preliminary environmental assessment will be prepared to
determine whether the project warrants an EIA. The activity may take one of the
following several forms:
a) Measurements using simple criteria such as size or location.
138
EEC Directive dated 27 June 1985. 85/337/EEC of 27 June 1985. OJL 175/40, 5 July 1985. 139
Krishnan, P. Leela, Environmental Law in India, 1999, pp. 155-156.
[63]
b) Comparing the proposal with list of projects rarely needing an EIA (e.g.
schools) or definitely needing one (e.g. coal mines).
c) Estimating general impacts (e.g. increased in infrastructure needed) and
comparing these impacts against set thresholds.
d) Doing complex analyses, but using readily available data.
2. Scoping: This stage identifies the key issues and impacts that should be further
investigated. This stage also defines the boundary and time limit of the study.
3. Impact Analysis: This stage of EIA identifies and predicts the likely
environmental and social impact of the proposed project and evaluates the significance.
4. Mitigation: This step in EIA recommends the actions to reduce and avoid the
potential adverse environmental consequences of development activities.
5. Reporting: This stage presents the result of EIA in a form of a report to the
decision-making body and other interested parties.
6. Review of EIA: It examines the adequacy and effectiveness of the EIA report
and provides the information necessary for decision-making.
7. Decision-Making: It decides whether the project is rejected, approved or needs
further change.
8. Post Monitoring: This stage comes into play once the project is commissioned.
It checks to ensure that the impacts of the project do not exceed the legal standards and
implementation of the mitigation measures are in the manner as described in the EIA
report.
Legal Framework for EIA:
The phrase ‗Environmental Impact Assessment‘ comes from section 102 (2) of the
National Environmental Policy Act (NEPA), 1969, USA. EIA is an effort to anticipate
measure and weigh the biophysical changes that may result from a proposed project. It
assists decision-makers in considering the proposed project‘s environmental costs and
benefits. Where the benefits sufficiently exceed the costs, the project can be viewed as
environmentally justified.140
140
Divan, Shyam and Rosencranz, Amin, Environmental Law and Policy in India, 2001 ed., p. 417.
[64]
The role for EIA was formally recognized at the earth summit held at Rio
conference in 1992. Principle 17 of the Rio declaration states that –
―EIA as a national instrument shall be undertaken for the proposed activities that
are likely to have significant adverse impact on the environment and are subject to a
decision of a competent national authority‖.
In India on 27 January 1994, the Union Ministry of Environment and Forests
(MEF), Government of India, under the Environmental (Protection) Act 1986,
promulgated an EIA notification making Environmental Clearance (EC) mandatory for
expansion or modernization of any activity or for setting up new projects listed in
Schedule 1 of the notification. Since then there have been 12 amendments made in the
EIA notification of 1994. By doing so legislature has brought NEPA in to India by EIA
notification 1994.
The MoEF notified new EIA legislation in September 2006. The notification
makes it mandatory for various projects such as mining, thermal power plants, river
valley, infrastructure (road, highway, ports, harbours and airports) and industries
including very small electroplating or foundry units to get environment clearance.
However, unlike the EIA Notification of 1994, the new legislation has put the onus of
clearing projects on the state government depending on the size/capacity of the project.
Although Indian environmental law in general and the Water (Prevention and
Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981
and the Environment (Protection) Act, 1986,and rules made there-under in particular
comprehensively provide for the maintenance / restoration of the wholesomeness of the
environment and prevention, control and abatement of environmental pollution, yet they
suffer from many inherent weaknesses giving rise to halfhearted implementation and poor
compliance of environmental law which in turn defeats its very objectives to a large
extent.
One of such major weaknesses relates to that part of pollution prevention and
control mechanism provided under the post-independence anti-pollution Acts which
exclusively deal with the disposal of an application given to the State Pollution Control
Board for the purpose of obtaining consent / permission to establish new or continue with
[65]
an already existing industry, operation or process which is likely to affect the
environment adversely.141
These Acts certainly, for the purpose of managing the
environment, make it mandatory to obtain consent of the Board for the above said
purposes but do not envisage any Environment Impact Assessment in the strict sense of
the term as a condition precedent for granting or refusing such consent. The SPCB, while
dealing with such application may make such inquiry as it may deem fit in respect of the
consent application and in making such inquiry, the Board is required to follow such
procedure as prescribed by Rules made under the above mentioned Acts.142
These
provisions confer absolute discretion on the Board to decide whether an inquiry should be
made by it before disposing of the consent application or not. If the Board decides to
make an inquiry then, of course, it has to follow the procedure prescribed by Rules, but
surprisingly such rules do not provide for any serious inquiry or meaningful public
participation.143
Public hearing or participation which is an integral part of EIA utterly
lacks while completing such inquiry. In the name of public participation, only a register
containing the conditions subject to which consent in granted, is maintained by the Board
and that too is not open to the general public for inspection, but is confined only to a
person interested in or affected by an outlet or effluent without making it explicit as to
who shall fall into the category of interested or affected persons?144
Judicial Efforts for EIA:
The Supreme Court of India in M. C. Mehta v. Union of India145
has also
emphasized the need to evolve a national policy for this purpose in the following words:
―We would, therefore, suggest that a High Powered authority should be set-up by
the Government of India in consultation with the central board for overseeing functioning
of hazardous industries with a view to ensuring that there are no defects or deficiencies in
the design structure or quality of their plant and machinery, there is no negligence in
maintenance and operation of the plant and equipment and necessary safety devices and
141
See Chapter IV of the Water (Prevention and Control of Pollution) Act, 1974and the Air (Prevention and
Control of Pollution) Act, 1981 and Chapter III of the Environment (Protection) Act, 1986. 142
Section 25 (3) of the Water Act, 1974 and Section 21 (3) of the Air Act, 1981. 143
Rule 30 of Uttar Pradesh (Consent for Discharge of Sewage and Trade Effluents) Rules, 1981. 144
Section 25 (6) of the Water Act, 1974 145
AIR 1987 SC 965
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instrument are installed and are in operation and proper and adequate safety standards and
procedures are strictly followed.‖146
It is also necessary to point out that when science and technology are increasingly
employed in producing goods and services calculated to improve the quality of life, there
is a certain element of hazard or risk inherent in the very use of science and technology
and it is not possible to totally eliminate such hazard or risk altogether. We cannot
possibly adopt a policy of not having any chemical or other hazardous industries merely
because they pose hazard or risk to the community. If such a policy were adopted it
would mean the end of all progress and development. Such industries even if hazardous,
have to be set-up since they are essential for economic development and advancement of
well-being of the people, we can only hope to reduce the element of hazard or risk to the
community by taking necessary steps for locating such industries in a manner which
would pose least risk or danger to the community and maximizing safety requirements in
such industries. We would, therefore like to impress upon the Government of India to
evolve a national policy for location of chemical and other hazardous industries in areas
where population is scarce and there is a little hazard or risk to the community and when
hazardous industries are located in such area, every care must be taken to see that large
human habitation does not grow around them. There should preferably be a green belt of
1 to 5 km width around such hazardous industries.147
The Indian judiciary has also started applying this principle with great care and
enthusiasm as soon as it was born, holding that such principles are part of the
environmental law of the land. The Apex Court of India has very brilliantly explained the
concept of this principle in Vellore Citizens case,148
successfully applied the same in Taj
Trapezium case149
and quite categorically stated in M.V. Nayudu case150
that „it is better
to err on the side of precaution and prevent environmental harm than to run the risk of
irreversible harm‟.151
146
AIR 1987 SC 965 at 980-981. 147
AIR 1987 SC 965 at 980-981. 148
AIR 1996 SC 2715 149
M C Mehta v. Union of India, AIR 1997 SC 734 150
AIR 1999 SC 812 151
(2001) 8 SCC 765.
[67]
Thus, techno-scientific inadequacies and uncertainties are the mother of
precautionary principle wherein anticipation of environmental harm, adoption of
preventive measures, option of minimum environmentally harmful ventures and burden
of proof on the developer that the venture is environmentally benign there by making him
more cautions even while planning and designing the project are seriously involved.
However, there is a caution against this principle that precautionary obligations must not
only be triggered by suspicion of concrete danger but also by justified concern or risk
potential.152
The Precautionary Principle comprises a number of attributes, which make it an
effective instrument for avoiding environmental harms involving scientific uncertainties
by adopting necessary measures and promoting the development of clean technology. In
fact, precautionary principle operates as a rule of evidence and it specially deals with the
onus of proof in environmental cases. This principle shifts the responsibility on the
polluter to prove that his action is environmentally benign.
The Supreme Court again used the principle of agency deference to reject a
challenge to raising the level of Mullaperiyar Dam in the case of Mullaperiyar
Environmental protection Forum v. Union of India.153
The court allowed an increase in
Dam height since the expert committee had found that there would be no adverse impact
on flora and fauna, and that the structural safety would not be compromised by the
project .The High Court, too, have been reluctant to interfere in the execution of
infrastructure project on the ground that the environmental clearance was defective.
Declining to overturn expert opinion, the High Court permitted the international airport
project at Hyderabad to proceed in the case of Forum for a better Hyderabad v. Govt. of
A.P.154
and also refused to quash an environmental clearance granted in favour of power
station.155
Confronted by the issue of whether or not, to permit a ship breaker to dismantle
passenger liner at Alang, Gujarat, the Supreme Court appointed a technical committee of
152
Krishnan, P. Leelakrishan, Environmental Law Case Book, 2004, p. 297. 153
(2006) 3 SCC 643 154
2004 (1) ALT 500 155
Iyer, Ramaswamy R., Water and the Laws in India, 2009, p.359.
[68]
experts to guide the court upon receiving the report, the Court held that the approach in
such matter involves balancing developmental imperatives with environmental interests.
Since all projects would have some adverse impact on the ecology and environment, a
suitable balance must be struck between the competing of the enterprise and
environmental protection. The Court permitted dismantling of the vessel in term as of
expert‘s reports in Research Foundation for Science Technology and Natural Resource
Pollution v. Union of India.156
Sustainable Development and Environment Protection:
The balance between environmental protection and developmental activities could
only be maintained by strictly following the principle of sustainable development. It is a
development strategy that caters the needs of the present without negotiating the ability of
upcoming generations to satisfy their needs. The strict observance of sustainable
development will put us on a path that ensures development while protecting the
environment, a path that works for all peoples and for all generations. It also guarantee to
the present and bequeath to the future. All environmental related developmental activities
should benefit more people while maintaining the environmental balance. This could be
ensured only by the strict adherence of sustainable development without which life of
coming generations will be in jeopardy. The adherence of sustainable development
principle is a sine qua non for the maintenance of the symbiotic balance between the
rights to environment and development. Right to development cannot be treated as a mere
right to economic betterment or cannot be limited to as a misnomer to simple construction
activities.
The right to development encompasses much more than economic well-being, and
includes within its definition the guarantee of fundamental human rights. The
development is not related only to the growth of GNP, in the classic work - Development
as Freedom the Nobel Prize winner Amartya Sen pointed out that the issue of
development cannot be separated from the conceptual framework of human right. This
idea is also part of the United Nations Declaration on the Right to Development. The right
to development includes the whole spectrum of civil, cultural, economic, political and
social process, for the improvement of peoples‘ well-being and realization of their full
156 (2007) 1 SCALE 75
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potential. It is an integral part of human right. Of course, construction of a dam or a mega
project is definitely an attempt to achieve the goal of wholesome development. Such
works could very well be treated as integral component for development. Concepts like
inter-generational equity as discussed in State of Himachal Pradesh v. Ganesh Wood
Products157
, public trust doctrine as discussed in M.C. Mehta v. Kamal Nath158
and
precautionary principle in Vellore Citizens‟ Welfare Forum v. Union of India159
, which
have been declared as inseparable ingredients of our environmental jurisprudence, could
only be nurtured by ensuring sustainable development. Sustainable development is one
of the means to achieve the object and purpose of the Act as well as the protection of life
under Article 21. The precautionary principle accepted by India being a party and
significatory to international agreement and understandings in the field of environment
has become part of domestic law i.e. Environmental (Protection) Act, 1986.
Need of Public Participation in EIA:
An ideal environment clearance process requires that there are ―frequent public
involvement provisions, full access to information, the right of appeal to an independent
third party, the full involvement of interested and affected parties and an explicit decision
making role for the public.‖ Public participation deserves attention because the degree of
participation affects the quality of the environmental impact analysis process, which, in
turn, affects the quality of the decision about a project.160
Broader participation creates
more information and alternatives to be presented to decision makers, enhancing the
opportunity to mesh public values and government policy.161
EIA is effective in providing
local people with an opportunity to be heard and to participate in decision-making that
affects their environment. EIA facilitates democratic decision-making and consensus
building regarding new development.162
157 AIR 1996 SC 149 158
AIR 2000 SC 1997 159 AIR 1996 SC 2715 160 See http://www.cseindia.org/programme/industry/ eia/existing_notification.htm 161 Tilleman, William A., Public Participation In The Environmental Impact Assessment Process: A Comparative Study Of
Impact Assessment In Canada, The United States And The European Community, 33 Columbia Journal of Transnational
Law Association 337 (1995).
162 Robinson, Nicholas A., International Trends In Environmental Impact Assessment 19 Boston College Environmental Affairs Law Review 591 (1992).
[70]
The public needs to be aware of the procedures for participation in environmental
decision-making, have free access to them and know how to use them. But the
environmental public hearing (EPHs) process that began from 1997 in India fails to make
any necessary changes in the project. This is because industries violate the legal
provisions and go for hearing only after their projects have become functional and not
prior to it, as is mandatory.163
Conclusion
Environmental Impact Assessment is an effort to anticipate measure and weigh
the socio-economic and bio-physical changes that may result from a proposed project. It
assists decision -makers in considering the proposed project‘s environmental costs and
benefits. When the benefits sufficiently exceed the costs, the project can be viewed as
environmentally justified. Hence, a comprehensive EIA would inevitably require a
possible multi-disciplinary approach. Prior to Jan 1994, EIA was conducted under the
Administrative Model whereby project proponents had to take clearance from the MoEF.
The procedure required the filling out a questionnaire or checklist and environmental
appraisal was carried out by the ministry‘s Environmental Appraisal Committees.
On Jan 27, 1994, under Rule 5 of the EP Rules, the MoEF notified mandatory
EIAs. Now it was obligatory to prepare and submit an EIA, an Environment Management
Plan and a Project Report to an EIA Agency in order to take clearance. However, this was
done only for 29 designated projects. Under this notification, any member of the public
was to have access to a summary of the Project Report and the detailed EMPs. Public
hearing was also made mandatory under the Jan 1994 notification.
Later on May 4, 1994, an amending notification was issued by the MoEF which
diluted the earlier notification. Submission of a detailed Project Report was done away
with and now the proponent had to conduct either an EIA or an EMP. As amended, the
new notification allowed the project proponent to initiate land acquisition proceedings
and fell trees even before securing clearance. Public access to Executive Summary was
163 Tomar, Vernika , Corporate Responsibility And Environment Impact Assessment”, Journal of Indian Law Institute, 2008, Vol. 50 : 2, p.232.
[71]
restricted and further narrowed access only to bona fide residents located at or around the
project site.
On April 10, 1997, fresh amendments to the parent notification were brought and
public hearing was restored. The Parliament enacted the National Environment Appellate
Authority Act which constituted an authority headed by a retired SC judge/ CJ HC and
experts. This body was empowered to hear appeals by any aggrieved parties by grant/
refusal of EIA Clearance. However, none of the notifications give any clarification as to
what is public participation and whether it is relevant to all the industries mentioned in
the Schedule to the Act.
[72]
6. Norms of Assistance and Salvage in International
Civil Aviation
By: Shailendra Kumar164
Introduction
Air navigation has always been a risky business. If we look at the history of air
navigation we find that there were lots of accident in flights and it continues till date. An
analysis of figures shows that accidents have increased with development of technology
and multiplicity of air navigation. In the case of airplane accident it is very important to
provide help to save life and properties. Since planes fly from one country to another and
one plane crosses many geographical area such as dessert, sea, and mountain providing
help raises a number of questions specific to the sector. It is evident that air transportation
is continuously increasing in the new millennium and every major state is trying to
develop its aviation sector and because of these developments chances of accidents
increase. An accident calls for basic need of assistance at the time of accident. This paper
tries to trace the attempts made by the world community for assistance in case of air
accidents. This has been done by reference to the principle of salvage, a key term in use
since long in marine law. For this purpose, the first section of the paper discusses the
steps taken to this effect prior to 1944 while the second part covers the attempts made by
the International Civil Aviation Organization. The time period has been divided as steps
taken prior to 1944 and those taken after that. 1944 is a distinctive year because of the
establishment of the International Civil Aviation Organization (ICAO) under the Chicago
Convention, 1944. Prior to it we had some efforts aimed towards unification of rules
relating to international aviation in the form of Paris Convention and Havana Convention
but the real breakthrough came with the establishment of ICAO. In the Third section,
author tries to analyze use of salvage Principe in civil aviation. The Fourth section
discusses Indian norms of assistance.
Civil aviation is a fast growing industry and there is always need of assistance to
aircraft who have met with accident or there is possibility of accident. An aircraft carries
164
LL.B (Banaras Hindu University), LLM (WBNUJS), PhD (ongoing)
The West Bengal National University Of juridical Sciences Kolkata
Recipient of Rajiv Gandhi National Fellowship for PhD.
[73]
not only human being but also valuable property which requires assistance in case of
danger of or arising out of accident. Salvage is the settled principle of maritime law which
is applicable to ships and vessels which are in peril at high sea. The savior of the ship or
vessels is known as salver. Attempts have been made to import the well settled salvage
principles into aviation law. This paper will try to see as how far this purpose has been
fulfilled successfully.
Norms of Assistance before 1944:
The year 1919 was a remarkable year in the history of aviation industry as this
year marked the beginning of efforts by states to unify rules relating to international
aviation. This endeavour resulted in Paris convention of 1919 which was the first of such
efforts. The Convention relating to the Regulation of Aerial Navigation, Paris, 1919 made
it obligatory for high contracting parties to treat aircraft‘s of other nationality aircraft on
same footing as their national aircraft in time of distress165
. This means if any aircraft
needs help due to accident, it can seek help from the contracting state and the Contracting
State is bound to provide the same help it would provide to an aircraft belonging to its
nationality. Article 2 of the Paris convection recognizes territorial sovereignty of
contracting state extending it not only to national territory but also to adjacent territorial
waters and colonies of the contracting state.
Article 23 of the convention declares that if an aircraft meets with accident in the
sea the principle of maritime law would be applicable. The principle of maritime calls for
search and rescue not only states but also by any volunteer at the time of aircraft distress.
However Article 23 itself provides that in absence of any another agreement salvage
principle would be applicable. But this principle was incomplete because air navigation
was not restricted to sea only. Convention was not followed by any other instrument that
could provide complete guideline such as annexure 12 of ICAO. In absence of guideline
the States are free to make their own arrangements. In 1928 the HABANA Convention
was the second attempt where needs for assistance was recognise by convention. Article
26 of the Habana convention states that ―The salvage of aircraft lost at sea shall be
regulated, in the absence of any agreement to the contrary, by the principles of maritime
165 Article 22 of Convention Relating to the Regulation of Aerial Navigation,1919
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law‖.166
Habana Convention makes it obligatory for all contracting states to provide all
necessary help whenever necessary and also the aircraft has the right to seek all possible
aid when the aircraft is in danger.167
But these norms of assistance were not adequate
because they were applicable either to territorial area of the state or at high sea. Further,
the Convention did not classified duty of the states as done in Paris convention. Paris
convention was supported by certain annexure on issues relating to aviation industry. The
need for assistance and salvage was comprehensively adopted for the first time in the
Brussels Convention, 1938. It was the first convention which tried to lay down uniform
rule relating to search and rescue by adopting salvage principle in aviation law but it
never become operative due to non-ratification by sufficient number of states. Though,
this convention could not come in to force but an analysis of this convention would be
worthwhile because it was the first international document which laid down the salvage
principle in aviation law and set standards for assistance which is necessary to protect life
and property at the time of accident or incidents. This convention imposes obligation on
both aircraft commander and ship caption to render assistance to aircraft which is in
danger.168
Under Article 3 of Convention salvor has a right to seek expense from owner of
the aircraft for his services and damage suffered in course of operation of salvage. The
Convention also states that if any person voluntarily assists aircraft or vessels, he should
be rewarded with the only condition that effort made by volunteer must be positive or
contribution must be worthwhile.169
The convection imposes duty on national legislature
to enacts law which could determine liability of the designate person who fails to render
assistance where it necessary.170
This convention set norms for assistance and burden of
execution was put on the contracting states. It was a state‘s obligation to enact law to
enforce the convention; it set standard norms. In case of indemnity, the maximum liability
under the could not exceed more than 50,000 francs per person saved and where property
has been saved liability could not be exceed 50,000 francs for total property saved and in
166 Article 26 of the Convention on Commercial Aviation, commonly known as Habana Convention 1928 167 Article 27 of the Convention on Commercial Aviation, Habana Convention 1928 168 Article 2(1)and (2) of Convention for the Unification of Certain Rules Relating to Assistance and Salvage of
Aircraft or by Aircraft at Sea, Commonly known as Brussels Convention 1938
169 Article 3(2), of the Brussels Convention 1938 170 Article 2(6) of the Brussels Convention 1938
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case of aircraft, operator of aircraft would not be liable to pay more than 500,000 francs
as indemnity.171
By this way obligation of the owner of the damaged aircraft was limited.
It also states that if there is more than one salver, expense could not exceed more than that
determined by this convection and will be determined in proportion to the efforts of the
salvers and a limitation period of six month for notice to the owner of aircraft was
fixed.172
Remuneration was to be decided on the basis of the measure of success obtained,
the efforts of the salvors, the danger run by the salved aircraft, its passengers, crew and
cargo, by the salvors and by the salving aircraft or vessel, the time expended, the
expenses incurred, losses suffered, the risks of liability and other risks run by the salvors,
and also the value of the property exposed to such risks, due regard being had, the case
arising, to the special adaptation, if any, of the salvor‘s equipment, the value of the
property salved etc.173
Article 8 of convention says that there is no remuneration payable
if assistance or salvage services are rendered contrary of law or are prohibited and court
has power to reduce or deny compensations for assistance and salvage services if salvors
are guilty of theft, concealment, or fraudulent acts. Remuneration for assistance or
salvage will be decided by the national law of the state or according to the contract
governing the vessels. The contract governing the vessels means the contract of the
salvage. Action against operator of aircraft could be brought within two years of the
salvage operation for indemnity of remuneration.174
If we see the Convention, we find
that the Convention wanted States to regulate salvage law through the national legislation.
However, the Convention was lacking in certain aspects. It does not apply in cases
where a person is under obligation and aware of the fact that assistance have been provide
by others which are similar to his services or are better.175
The Convention also does not
cover situations where the aircraft is ready to depart for there is no obligation to render
services when the planes are in standing mode.176
Also aircraft or vessel not assisting or
rendering rescue services is not liable unless ordered to do so. Brussels convention was a
good attempt to set basic norms of assistance but it was not complete due to its
171 Article 3(4) of the Brussels Convention 1938 172 Article 3(5) of the Brussels Convention 1938 173 Article 4 of the Brussels Convention 1938 174 Article 11 of the Brussels Convention 1938 175 Article 2(5) of the Brussels Convention 1938 176 Article 2 (4) of the Brussels Convention 1938
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inapplicability to certain areas and its allowance to States by giving them an upper hand
at legislating relevant rules pertaining to salvage for aeroplanes.
Norms of Assistance after 1944:
Chicago conference was called in 1944 to facilitate international aviation and was
concluded by the Provisional International Civil Aviation Organization (PICAO), which
later became the Permanent organization ICAO. Chicago Convention sets forth the
principles and gives power to ICAO to set international standard for international civil
aviation under Article 37 of Chicago Convention. Article 25 of the Chicago Convention
mandates contracting states that:
―Each contracting State undertakes to provide such measures of assistance to
aircraft in distress in its territory as it may find practicable, and to permit, subject to
control by its own authorities, the owners of the aircraft or authorities of the State in
which the aircraft is registered to provide such measures of assistance as may be
necessitated by the circumstances. Each contracting State, when undertaking search for
missing aircraft, will collaborate in coordinated measures which may be recommended
from time to time pursuant to this Convention”
All high contracting party of the convection are bound to be follow norms of
assistance which are set under Article 25 and 37 of the Chicago Convention. Chicago
Convention is supplemented by annexure. Annexure 12 of the Chicago convention
provides for search and rescue which is mandated by Article 25 of the Convention. It is
relevant to mention that annexes set two types of practice- first, standard practice and
second, recommended practice. ―Standard practice‖ has been denoted by shall, and
―Recommended practice‖ has been denoted as desirable.177
Annexure 12 of Chicago Convention:
Annex 12 contains the standard and recommended practices to be followed for
rendering assistance to an aircraft in distress. Annex 12 is further supplemented by the
International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual Volume
I, Organization and Management volume II, Mission and coordination and Mobile facility
177 Editorial practice of Annex 12, it is followed for status of each statement.
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volume III.178
Purpose of three volumes of the International Aeronautical and Maritime
Search and Rescue Manual is to guide States in meeting their own search and rescue
preparation and the obligations accepted under the ICAO Convention on International
Civil Aviation. These volumes provide guidelines for a common aviation and maritime
approach to organizing and provides search and rescue services.
The Organization and Management volume discusses the global search and rescue
system; concept, establishment and improvement of national and regional search
and rescue systems; co-operation with neighboring States to provide effective and
economical search and rescue services;
The Mission Co-ordination volume guide assists personnel who plan and co-
ordinate search and rescue operations;
The Mobile Facilities volume, intended to be carried aboard rescue units, aircraft,
and vessels helps with performance of a search and rescue.
Annex 12 is divided into 5 chapter i.e., Definition, Organization, Cooperation,
Preparatory measures and Operating procedures. Chapter One of Annex 12 provides the
definition for the annex. ‗Distress Phase‘ has been defined as ―a situation wherein there a
reasonable certainty that an aircraft and its occupants are threatened by grave and
immediate danger and require immediate assistance‖.179
‗Rescue‘ means ―An operation
to retrieve persons in distress, provide for their initial medical or their needs and deliver
them to place of safety‖. Chapter 2 provides that states individually or in corporation with
other state should immediately establish search and rescue services on 24x7 basis.180
Annex 12 in 2.1.1.1 provides that on the high sea or area that is part of any state, states
are to provide assistance on the basis of regional aviation navigation agreement. This
provision has led to ambiguity because it does not put direct obligation on the state and
assistance would be decided by the regional aviation agreement. Suppose if an aircraft is
registered in a third country and she is not a party of the regional agreement then the
question arises as to who will be responsible for rendering assistance. Further, the Annex
mandates States to provide assistance on non-discriminatory basis which means it is State
responsibility to assist aircraft without consideration of nationality of aircraft or personnel.
The Annex mandates that State will provide search and rescue services on ―state of
178 Annex 12 of ICAO 179 Annex 12, chapter 1 of ICAO 180 2.1.1 of Annex 12 of chapter 2 of ICAO
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emergency‖ but is not clear as to who determines that when and what constitutes states of
emergency.181
It is mandatory for State to designate search and rescue region within its
territory.
Annex 12 recommends states to establish joint regional search and rescue center.
Search and rescue center will work in association with associated air traffic services units,
associated rescue sub-centers, direction-finding and position fixing stations, coastal radio
stations which are capable of alerting and communicating with surface vessels in the
region, headquarters of search and rescue units in the region, all maritime coordination
centers in the region and aeronautical, maritime or joint rescue coordination centers in
adjacent regions, designated meteorological, search and rescue units, alerting posts,
Mission Control Centre servicing the search and rescue region.
Chapter 3 deals with cooperation between state parties in pursuance of assistance.
It mandates state party to cooperate with neighboring States. If one state enters for
rendering assistance she will ask for permission and it is the duty of contracting state
authority to permit that state with or without condition182
. It is a state reasonability to
provide information to other state relating to search and rescue unit which is usually done
either by search and rescue arrangement or by publication.
Chapter 4 guides state regarding the necessary preparatory measure to be taken. It
mandates that rescue coordination centre should be readily available at all times with up-
to-date information relating to:
A. Search and rescue units, rescue sub-centers and alerting posts;
B. Air traffic services units;
C. Means of communication that may be used in
D. Search and rescue operations;
E. Addresses and telephone numbers of all
F. Operators or their designated representatives, engaged in operations in the region;
G. Other public and private resources including medical and transportation facilities
that are to be useful in search and rescue operation.
181 Annex 2.1.3 of chapter 2 of ICAO 182 Annex 12 chapter 3, 3.1.3 and 4 ICAO
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Chapter 4 (4.2) provides that state party should prepare search and rescue plan for
their region and state should provide training to its search and rescue personnel for
maximum result.
Chapter 5 deals with the procedure for search and rescue operation. It provides
that as soon as authority is aware or he has reason to believe that aircraft is in emergency,
it should convey all information to the concerned rescue coordination center.
Coordination center on receipt of information received from any source should evaluate
the information and determine the extent of assistance.183
Annex 12 mandates that when
pilot-in-command observes that other aircraft or a surface air craft is in distress, the pilot
should determine the position of the craft in distress, report to the rescue coordination
centre or air traffic services unit as much possible information such as type of craft in
distress, its identification and condition, its position expressed in geographical
coordinates or in distance and true bearing from a distinctive landmark or from a radio
navigation aid, time of observation expressed in hours and minutes UTC, number of
persons observed, whether persons have been seen to abandon the craft in distress,
apparent physical condition of survivors, on scene weather conditions as instructed by the
rescue coordination, centre or the air traffic services unit etc. Most of the countries are
parties of the ICAO and they follow Chicago convention and its annexure but Chicago
convention does not provide any sanction against those States which do not abide these
annexes.184
Annex 12 is applicable only to civil aircraft not to vessels, which means that
if an aircraft is in high sea and has emergency conditions, assistance would be dependent
upon the aircraft only. Further, sometimes assistance would be dependable on the regional
air navigation agreement185
and absence of regional air navigation agreement would make
it hard to provide assistance during emergency.
Salvage Principle and Civil Aviation:
Salvage is a principle of maritime law and it is very useful in marine navigation.
This principle provides for assistance to vessels in emergency. The doctrine of salvage is
based on the notion that special reward would be useful for inducing voluntary effort in
saving ship and cargo property in peril at sea. There are three types of salvage- Property 183
Annex 12 chapters 5 of ICAO 184
Diederik, I.H.Pb, An Introduction to Air Law, 2006, p.206 185
Annex 12 chapter 2, 2.1.1.1. of ICAO
[80]
salvage, life salvage, and environment salvage. If assistance has been provided
voluntarily, salvor is rewarded on the basis of the quantum meruit. Quantum merui means
the amount salvor deserves. Quantum meruit is an action for payment of the reasonable
value of services performed by the volunteer.186
Salvage is applied to the high sea and the
open coasts, where skill and courage are essential to a successful salvage. It is extended to
perils in harbors or on inland waters. Salvage is the rendering of a voluntary service to
vessels in danger on water, effort must be voluntary and it should not be an obligation by
law.187
Property salvages means saving property in the high sea from peril or danger. In
the case of property salvage, salvors are rewarded by the owner of the property. Article 2
of the Salvage convention 1910188
provides for every act of assistance or salvage of which
has useful result resulting in a right to equitable remuneration but there would be no
remuneration payable if the services rendered have no beneficial result. It further states
that if property have been saved remuneration cannot exceed more than value of property.
Life salvage was not recognized until 1854 in most of the countries. The reason
was that life salvor could not be rewarded for saving of life and salvor could not detain
the person saved. In 1854 by Merchant Marine Act of 1854, England189
recognized life
salvage. Later it was also recognized by the Salvage Convention 1910. But it seems that
both the Merchant Marine Act and the Salvage Convention do not give weight to life of
the human beings because both state that if life and property have been saved by different
solvers, the property salvor had to share reward with life salvor. If we see, aviation
navigation is also dangerous as marine navigation and initially aviation law was not much
developed as maritime law. Early in the 20th
centuries when, there was Convention to
unify rule relating to air navigation, salvage system was recognized by Article 23 of the
Convention Relating to the Regulation of Aerial Navigation 1919.
Article 23 provides that ―With regard to the salvage of aircraft wrecked at sea the
principles of maritime law will apply, in the absence of any agreement to the contrary‖. It
means all rules governing salvage of maritime law will be applicable in Arial navigation.
Not only Paris convention but Habana convection also recognized the salvage principle
186
Knauth, Arnold W., Aviation and salvage: The Application of Salvage Principles to Aircraft, Columbia
Law Review, February, 1936, Vol. 36, No. 2 187
Knauth, Arnold W., Aviation and salvage: The Application of Salvage Principles to Aircraft. 188
Convention for The Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea, 1910 189
Knauth, Arnold W., Aviation and Salvage: The Application of Salvage Principles to Aircraft.
[81]
via Article 26. Salvage principle was recognized by the two conventions but they were
not clear as to the extent it will be applicable. Secondly, salvage principle was made
applicable only to vessels but it was not clear that by recognizing salvage principle
whether it would be made applicable only to aircrafts or vessels or both. With time it was
realized by countries that there is an urgent need for a legal regime governing aircrafts in
emergency. In 1938 Brussels convention on Unification of Certain Rules Relating to
Assistance and Salvage of Aircraft or by Aircraft at Sea was concluded in 1938. Brussels
Convention contains comprehensive rules relating to salvage and guides state as to how to
determine remuneration of the salvor. It also speaks about the duty of the ship caption and
aircraft commander.
Environmental salvage is the recent concept of protecting environment of the sea.
The International Convention Relating to Intervention on the High Seas in Cases of Oil
Pollution Casualties of 1969 gives right to contracting state to take preventive measures
on the high seas in order to prevent imminent dangers of pollution.190
Environment
salvage was not recognized by the salvage convention of 1910. Environmental salvage is
included under the salvage convention, 1989.191
Article 8 provides for duty and liability
on all parties to the salvage, owners, cargo and salvors to assist in and carry out the
salvage with due care, and in so doing, to prevent or minimize damage to the environment.
The definition of environment damage has been given by Article 1(d) of the Salvage
Convention according to which ‗environment damage‘ means ―substantial physical
damage to human health or to marine life or resources in coastal or inland waters or areas
adjacent thereto, caused by pollution, contamination, fire, explosion or similar major
incidents‖. But in practice it is subordinate of property salvage and a claim on this ground
cannot stand by its own.192
The value of environmental salvage would be based on the
property saved and if nothing is saved then the effort would be rewarded by national
maritime found.193
190
Article 2 of International Convention relating to Intervention on The High Seas in cases of Oil
Pollution Casualties, 1969 191
Article 1(b) of International Convention on Salvage, 1989 192
Chan, Liang, 16 Int‘l J. Marine & Coastal L. 698 2001 193
Chan, Liang, 16 Int‘l J. Marine & Coastal L. 698 2001
[82]
Thus, aviation law recognizes salvage under two major conventions, i.e. Paris
convention and Habana convention and Brussels convention made a good attempt to
recognize it further on more systematic lines but could not ratified by sufficient number
of States. After 1944 ICAO is the international organization which recommends standard
norms to state party relating to aviation navigation. As we know, currently Annex 12 of
the Chicago convention is the only instrument which set norms regarding assistance and
member country are to follow these Standards and Recommended Practices. There is
need to recognize salvage principle in aviation law because adequate provisions for
aircrafts in distress is a sine qua non. Aircraft need to get assistance in emergency not
only by volunteer in high seas but also in any region other of the world. Since
environment salvage is a new development in maritime law, it can be used to cover cases
of aircraft pollution too. Aircraft pollute environment by many ways like noise pollution,
air pollution etc. Moreover during aircraft accidents one of the probable consequences is
environmental damage depending upon the area where the accident has occurred. The
principle of Salvage has changed its nature and has become contractual and professional
in nature. The owner of the ship usually contracts with salvor agency to provide
professional services. If aviation law recognizes salvage system it would not only be
helpful to aircraft but also for the passengers travelling in such aircrafts meeting with
accidents.
Indian Position in reference to Assistance and Salvage:
Aircraft Act 1934 is the fundamental law regulating civil aviation in the country.
Section 9 of the Act provides:
(1) The provisions of Part XIII of the Merchant Shipping Act, 1958 relating to
Wreck and Salvage shall apply to aircraft on or over the sea or tidal waters as they apply
to ships, and the owner of an aircraft shall be entitled to a reasonable reward for salvage
services rendered by the aircraft in like manner as the owner of a ship.
(2) The Central Government may, by notification in the Official Gazette, make
such modifications of the said provisions in their application to aircraft as appear
necessary or expedient.
If we see the Merchant Shipping Act, Section 402 deals with salvage mechanism
which should also be applicable on aircrafts due to section 9 of Aircraft Act. Section 402
[83]
provides that if salvage services is provided by any person,194
he should be compensated
by the owner of the vessels and if government or any other governmental body provides
services then it will be payable by the owner of the vessels. However, life salvage is
recognized over property because Section 402 (2) provide that ―Salvage in respect of the
preservation of life when payable by the owner of the vessel shall be payable in priority to
all other claims for salvage‖. This is a wonderful improvement giving life its due regard
which it deserves over property.
Salvage is recognised by the Indian Aircraft Act but government has not made any
rule fulfilling the need of salvage in aviation law. Government of India, in pursuance to
Chicago convention and its Annex 12 had made rules for providing assistance to aircrafts
in emergency. These rules are made under the Aircraft rule 1937 and are modified from
time to time. Government of India has issued Civil Aviation Requirement (CAR) and its
provisions under Rule 29C and Rule 133A of the Aircraft Rules, 1937 provide for search
and rescue of aircraft flying in or over India.
Civil Aviation Requirements (CAR) dealing with Space and Air Traffic
Management Series issued in January 2010 contains relevant information pertaining to
Indian position on assistance. [Part I, Issue II, issued January 2010]. It is divided in to five
parts. First part provides for definition of the terms used in the search and rescue
requirement. Second parts deal with organisational aspect of the search and rescue
operation. It provides that Airports Authority of India would be responsible for
establishment and provision of search and rescue services in coordination with other
agencies and will ensure assistance to persons who are in emergency/ distress and such
services would be available on a 24-hour basis.195
Further, such assistance would be
available within the entire Indian Territory, territorial waters, those portions of the
high seas areas, of undetermined area of whose responsibility of providing Air Traffic
Services is delegated to India. It provides that emergency assistance would be available
to all without discrimination.196
194
Section 402 (1) (c) of the Merchant Shipping Act, 1958 195
Civil Aviation Requirements, Section 9 – Air Space and Air Traffic Management Series‘s‘, Part I, issue
ii, 8th
issued January 2010. Available http://dgca.nic.in/rules/rule-ind.htm website , visited on 10/15/2011 196
Civil Aviation Requirements, Section 9 – Air Space and Air Traffic Management Series‘s‘, Part I
[84]
Search and rescue region will be established are there should not overlapping
areas. It further provides that Airport Authority would establish rescue coordination
centre in each region which should have employed staff on a 24 hours basis. It provides
that if any person observes an aircraft to be in emergency, he should inform the rescue
coordination centre concerned directly, and should also inform the nearest police
station.197
It imposes duty on Pilot in Commander to transmit any information it finds
about any aircraft in emergency to rescue coordination center and work according to the
instruction of the center. He is also required to observe the aircraft, distance of aircraft,
and passenger of aircraft and provide all possible help which he can.198
It further provides
that provision being made for suitably located agencies, equipped for search and rescue
operations to be designated for search and rescue functions. All aircraft, vessels and local
services and facilities which are not part of the search and rescue organization will
cooperate to achieve result. It provides for cooperation among aeronautical and maritime
authorities, person such as doctor or person who can provide immediate relief to accident
people. If a foreign state wants to enter for search and rescue purpose he can obtain
necessary Information from Aeronautical Information Publication (AIP). The Civil
Aviation Requirement also provides comprehensive guideline relating to operation of
rescue, plan for search and rescue and training of the personnel. But it did not contain any
provision relating to salvage and does not speak of conditions involving voluntary
services by individuals.
Conclusion
Assistance for aircraft is very necessary during emergency. The initial regulation
of air law by Paris convention and Habana convention had no provision relating to
assistance for aircraft in emergency but these conventions tried to solve the problem by
adopting maritime principle. However the application of maritime principles was limited
to high sea or costal area. The Brussels convention was the first attempt at inclusion of
provisions relating to assistance to aircraft but it had its own limitation. It was not
applicable to land and was applicable only to sea. Nevertheless, it was a serious attempt
197
2.3.5, of Civil Aviation Requirements, Section 9 – Air Space and Air Traffic Management Series‘s‘, Part
I 198
5.6.2, of Civil Aviation Requirements, Section 9 – Air Space and Air Traffic Management Series‘s‘,
Part I
[85]
to make assistance to aircraft in emergency though it never came into existence. In 1944
Chicago convention was the first successful convention to speak about assistance via
Article 25 and Annex12. But this also does not recognize salvage principle in aviation
law. It is important to note that casualty does not come by invitation so assistance would
not be ready for aircraft. Salvage principle has been used in maritime law since the very
inception of it and can serve aviation law too but it needs to be recognized by ICAO and
the State parties. Supposing that an accident occurs in the desert and somebody voluntary
provides emergency services in his own capacity he should be rewarded. If this is not the
general norm nobody would come forward to help during such accident since it is a
known fact that nearest people, during accidents, can provide immediate relief to
passenger and property. Salvage has changed its character from being voluntary to
contractual, making it easier to apply in aviation by putting obligation on insurer to
compensate any volunteer providing services. The insurer can compensate the salvor
because it is his insurer duty to pay compensation for injury or damage. Though
environmental salvage is still a new concept in maritime law and it cannot stand on its
own as it has to share its reward. This position is absurd for there might be situations
where no property is to be saved or could not be saved. In such circumstances there
would be no incentive to save life for there would be no reward for services rendered to
save life. In aviation law it would be hard to adopt national level legislations but ICAO
through its annex can fill in the gap. ICAO can incorporate environmental salvage
principle in Annex 16 as recommendatory practices.
[86]
7. Pen – Down Strike: A Right In question
By: Syed Zeeshan199
Introduction
―Strikes‖, as it is said, ―are as old as work itself.‖200
All of us have at one time or
the other suffered inconvenience or experienced hardship as a consequence of strikes
resorted to by certain sections or groups in our society. Whenever workmen of hospitals,
transport undertakings, banks, railways, etc. have struck out their work, the general public
has got affected. The study of strikes is like a 'legal porcupine‘, which bristles with
difficulties the moment it is undertaken. When an individual confronts a question such as,
whether freedom to form a union carries with it the concomitant right to collective
bargaining and right to strike, more confusion gets generated.
A strike is „a condition where an individual or a group of individuals refuses to
work as a form of organized protest, typically in an attempt to obtain a particular
concession or concessions from their employer‘.201
It can also be defined as „a cessation
of work by a body of persons employed in any industry acting in combination, or a
concerted refusal; or a refusal under a common understanding of any number of persons
who are or have been so employed to continue to work or to accept employment.‘202
The emphasis in strike is on acting together and not on pre planning: the parties
who resort to strike, may come to a common understanding at the time in question
without any formal agreement or consultations but nevertheless the concerted action must
be collectively combined on the basis of spirit de corpse and must be combined together
by the community of demands and interest with a view to compel employer to accede to
their demands of wages, bonus, allowances, hours of work holidays and the like203
. Also,
the length or duration of the "concerted" action is immaterial.204
199
2nd
Year B.A. LL.B. (Hons.), Hidayatullah National Law University, Raipur, Chhattisgarh. 200
Knowles, Strikes: A Study In Industrial Conflicts, 1967 ed., p.357. 201
Oxford Dictionary of English, 3rd
ed. 2010. 202
Section 2(q), Industrial Disputes Act, 1947 203
D.N. Banerjeev v. P.R. Mukherjee, AIR 1953 SC 58 204
Diamond Machinery Manufacturing Works v. Their Workers, (1952) 1 LLJ 137.
[87]
In India, prior to 1926, there was no law governing strikes in Industrial Conflicts.
During this period there were 1,729 industrial disputes throughout India, one of which
extended to five provinces and another covered three provinces. The total number of
workers involved in these disputes was approximately 3¼ million and the aggregate time-
loss amounted to 84 million days or over 250,000 working years.205
With the advent of
the Trade Unions Act of 1926, the right of the industrial workers to strike was recognized,
rather indirectly, by granting to the members, office- bearers of registered trade unions
certain immunities. Thus, the Act of 1926 accorded statutory protection to strike action in
the guise of immunities and at the same time protected the funds of registered trade
unions.
The concept of ‗pen – down strike‘ came to India in early 1930s where the
workers did not desert their work place, rather went to their offices but didn‘t work. A
major debate arose to whether a pen down strike will fall under the general definition of
strike? The National Commission on Labor, while considering the adequacy or otherwise
of the definition of "strike" under Section 2(q) of the IDA declined to include concerted
action such as "go slow" and "work-to-rule" in the definition of "strike." According to the
Commission the labor protests, such as "go-slow" and ''work-to-rule'' should be "treated
as misconduct or unfair labor practices under the standing orders",206
and not as a strike.
However, the Supreme Court in Punjab National Bank Ltd. v. All India Punjab
National Bank Employees‟ Federation207
distinctly held on a plain and grammatical
construction of the definition in Section 2(q), that it would be difficult to exclude a strike
where workmen enter the premises of their employment and refuse to take their tools in
hand and start their usual work. Refusal under common understanding to continue to
work is a strike and if in pursuance of such common understanding the employees entered
the premises of the employer and refused to take their pens in their hand that would no
doubt be a strike under the provision of Section 2(q). Also, in the case of Bharat Sugar
205
Percy Glading, ‗The Growth of the Indian Strike Movement‟, as seen at
http://www.marxists.org/archive/glading/1930/07/x01.htm (last retrieved on 28th November, 2013) 206
Report of the National Commission on Labor, 1959, p.483 207
AIR 1960 SC 160
[88]
Mills Ltd. v. Jai Singh208
, the Supreme Court holding on to the Punjab National Bank
decision held -
‗Go-slow or pen-down which is a picturesque description of deliberate delaying of
production by workers pretending to be engaged in the factory is one of the most
pernicious practices that discontented or disgruntled workmen sometime resort to. It
would not be far wrong to call this dishonest. For, while thus delaying production and
thereby reducing the output, the workmen claim to have remained employed and thus to
be entitled to full wages. Apart from this also, 'go-slow' or ‗pen-down‘ is likely to be
much more harmful than total cessation of work by strike. For, while during a strike much
of the machinery can be fully turned off, during the ‗go-slow‘ or ‗pen-down‘ the
machinery is kept damaging to machinery parts. For all these reasons ‗go-slow‘ or ‗pen-
down‘ indeed falls under the definition of the term strike.‘
Thus, hereon a ‗pen-down‘ strike or ‗go-slow‘ strike is included under the Section
2 (q) of the Industrial Disputes Act, 1947.
If the Directive Principles of State Policy as enumerated under part IV of our
Constitution when read with Art.19 (which guarantees to the Indian citizens fundamental
rights like freedom of speech and expression, freedom of association, etc.) sow the seeds
of bargaining Jurisprudence" then, the relative questions arises: Does the Constitution
recognize the right to strike? Does the right to form unions guaranteed under the
Constitution carry with it the concomitant right to achieve the purpose for which the
union is formed? In other words, if the workers are guaranteed the right to form trade
unions, should such trade unions be entitled to engage in collective bargaining and to
exercise, if necessary, the right to strike?
However, when the Supreme Court was presented with the same question
(formulated slightly differently) - whether the right to form a union would carry with it
the concomitant right to collective bargaining and strike, the Supreme Court in the case of
208
(1961) 2 LLJ 53.
[89]
Kameshwar Prasad v. State of Bihar209
, held that even a very liberal interpretation of
article 19 (1) (c)210
could not lead to the conclusion that the trade unions have a guarantee
fundamental right to strike. The notion reiterated in the case of T.K. Rangarajan v. Govt.
of Tamil Nadu211
, where the Supreme Court held that there exists no fundamental right to
strike or even to a ‗pen-down‘ strike.
Though (right to strike) is not raised to the high pedestal of a fundamental right, it
is recognized as a mode of redress for resolving the grievances of workers212
. The
Industrial Disputes Act of 1947 so provides for; inters alia, the investigation and
settlement of industrial disputes. The Act seeks to bring about peaceful resolution of
industrial disputes through Conciliation, Arbitration and Adjudication. The Act regulates
strikes and lockouts in public utility services (henceforth "P.U.S.") and other general
industrial establishments. Chapter V of the Act embodies provisions relating to
prohibition of strikes and lockouts.
The scheme of the Industrial Disputes Act, 1947 implies a right to strike in
industries. A wide interpretation of the term 'industry' by the courts includes hospitals,
educational institutions, clubs and government departments. Sections 22, 23, and 24 all
recognize the right to strike. Section 24 differentiates between a 'legal strike' and ‗illegal
strike'. It defines 'illegal strikes' as those which are in contravention to the procedure of
going to strike, as laid down under Sections 22 and 23. The provision thereby implies that
all strikes are not illegal and strikes in conformity with the procedure laid down, are
legally recognized.
Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and
even an illegal strike could be a justified one"213
. It is thus beyond doubt that the
Industrial Disputes Act, 1947 contemplates a right to strike. However, such a right shall
always be used as for a remedy of last resort as negotiations should be attempted before
209
AIR 1962 SC 1166; All India Bank Employee's Association v. National Industrial Tribunal, AIR 1962
SC 171. 210
Article 19(1) (c), Constitution of India - Freedom to form associations or unions 211
AIR 2003 SC 3032 212
B.R. Singh and others v. Union of India, (1989) 2 LLJ 591; Chemicals and Fibers of India v. D. G. Bhoir,
(1975) 2 LLJ 168. 213
Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896.
[90]
using such a right. Thus, there exists a legal right to strike only in accordance to the
provisions of the IDA, 1947. The provisions being: -
(a) A notice must be provided to the employer within six weeks before striking;
(b) The strike must be at least 14 days after the issuance of the notice.
(c) The strike must begin before the expiry of the date provided in the notice.
(d) No strike can be done during the pendency of any conciliation proceedings
before a conciliation officer and seven days after the conclusion of such proceedings.214
The last of the conditions is further detailed as: -
No workmen who are employed in any industrial establishment shall go on strike
in breach of contract and no employer of any such workmen shall declare a lock-out: -
(a) During the pendency of conciliation proceedings before a Board (of
conciliation) and seven days after the conclusion of such proceedings;
(b) During the pendency of proceedings before (an adjudicatory body) and two
months after the conclusion of such proceedings;
(c) During the pendency of arbitration proceedings and two months after the
conclusion of such proceedings where a notification has been issued under Sub-Section
(3-A) of Section 10A; or
(d) During any period in which a settlement or award is in operation in respect of
any of the matters covered by the settlement or award215
.
Strike notice under the section is mandatory. If the notice is not in the prescribed
form and does not mention the date of strike then the notice is ineffective and invalid.
Consequently, any strike action would be illegal.216
Further, they cannot go on strike after
the expiry of six weeks from the date on which the strike notice has been served. To
illustrate, if the workmen serve a strike notice on the 1st of December 2013, they cannot
strike before the 14th
of December 2013.
214
Section 22, Industrial Disputes Act, 1947 215
Section 23, Industrial Disputes Act, 1947 216
Modi Industries v. Employees, (1949) 1 LLJ 882
[91]
The Supreme Court, adopting a literal construction of the statutory provision,
observed: ―the date of strike should be carefully selected and specified in the notice of
strike.‖ According to the Court, ―time is the essence of the Act and the requirements of its
relevant provisions must be punctually obeyed and carried out if the Act is to operate
harmoniously at all‖.217
However, if the strike does go beyond the above-mentioned provisions as given
under Section 22 and 23 of the Industrial Disputes Act, 1975 the participants of such a
strike shall be punishable with an imprisonment for a term not exceeding one month or a
fine not exceeding Rs.50 or both.218
Thus, labor law is complex and is ever growing. The foregoing precedents as
heeded and acted upon have successfully reduced the incidence of strikes in industrial
conflicts. However, the Government should also pragmatically examine and express
opinion over the question- ―whether in a country plagued by famines, floods and
bloodshed mentioning only a few, should sympathetic strikes and secondary boycotts be
tolerated or tacitly encouraged by manifest inaction?‖
217
Mineral Miners Union v. Kudremukh Iron Ore Co, 1989 (58) F.L.A. 915 (Karn) 218
Section 26 (1), Industrial Disputes Act, 1947
[92]
8. Water Pollution: A Serious Menace
By:Manisha Sharma219
and Pulkit Mogra220
“Every year, more people die from the consequences of unsafe water
than from all forms of violence, including war”.
Introduction
River water pollution has become the serious menace these days. The society has
to take some huge and serious steps to control it soon. Thus, the following essay is a step
towards the close scrutiny of various reforms and developments occurred gradually with
time. Firstly, the essay will broadly discuss the scope of water pollution in the context of
India. Secondly, it will touch upon the chain of reasons and sources for the increasing
water pollution at the alarming rate these days. Thirdly, it will discuss the developments
in the judiciary regarding the water laws. Fourthly, the broad parameters of problems
caused by water pollution and how it affects the daily human life are discussed with the
strong emphasis on need of the uniform water law for the country. Lastly, it concludes
with the remedies and the observation in particular with the prevention of river water
pollution in future. Thus, the essay will encapsulate the basic and effective concept of
river water pollution in India.
What is Water Pollution?:
The Environment (Protection) Act, 1986 clearly extends to water quality and the
control of water pollution. Section 2 (a) defines the environment to include water and the
interrelationship which exists among water and human beings, other living creatures,
plants, micro-organism and property.
The Water (Prevention & Control of Pollution)Act, 1974 section 2(e) defines
pollution as such contamination of water or such alteration of the physical, chemical or
219
Student of 3rd
year, West Bengal National University of Juridical Sciences, Kolkata 220
Student of 3rd
year, Jindal Global Law School
[93]
biological properties of water or such discharge of any sewage or trade effluent or any
other liquid, gaseous or solid substance into water (whether directly or indirectly) as may,
or is likely to, create a nuisance or render such water harmful or injurious to public health
or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or
to the life and health of animals or plants or of aquatic organisms.
The water act establishes a central and state pollution control board. The water act
is comprehensive in its coverage, applying to streams, inland waters, subterranean waters,
and sea or tidal waters.221
Causes of River Water Pollution:
There are several causes of water pollution, but some causes are beyond the
human control these days as they have become necessary for the survival of human life.
The following causes are serious threats to water pollution:
(a) Industrialization: Major industrial sources of pollution in India include fertilizer
plants, refineries, pulp and paper, leather tanneries, metal plating, chemical and
pharmaceutical and dye intermediate industries. ―A 1994 survey of the quality
at138 sampling locations in 22 industrialized zones of India revealed that water of
rivers in all 22 zones was not fit for drinking, due to high bacteriological and
heavy metal contamination‖.222
(b) Inappropriate Agricultural Practices: ―An uneducated farmer tends not to go by
the recommended dosage of pesticides, nor does he bother about protection of
workers‖ says A.K. Dikshit, senior scientist of Indian Agricultural Research
Institute (I.A.R.I.), New Delhi. Pesticides can have the wide-ranging impact on
the ecology of rivers. However, ―despite the gravity of the problem of pollution
caused by the pesticides, lack of proper policy and even bigger, lack of political
will of implementation of that policy, would hamper stringent control on the
future use of pesticides in the farming‖.223
Use of pesticides in agricultural
operations does also cause pollution because rain water washing it into a
stream.224
221
Divan, Shyam & Rosencranz, Armin, Environmental Law and Policy in India, 2004 ed. 222
―Reports Of Central Pollution Control Board‖, http://www.cpcb.nic.in, last accessed on 20-09-2013 223
Menon, Meena, Our Stolen Future, Sahara Time, September 17, 2005, New Delhi 224
Chaturvedi, RG, Law on Protection of Environment and Prevention of Pollution
[94]
(c) Untreated sewage and improper immersion activities: Sewage, immersion of
idols and heavy metal contamination are drastically polluting the river water.
Disposal of untreated waste also incorporates these factors of polluting the river
water.
With the impact of these factors the quality of pure water is falling at an alarming
rate. The factors above mentioned are very few from the uncountable factors which create
water pollution regularly.
Relevant Judgments and Case Laws:
In ―Subhash Kumar v. State of Bihar225
‖, the Supreme Court recognised that the
right to life includes the right of enjoyment of pollution free water and air for full
enjoyment of life.
“Re: Bhavani River v. Sakthi Sugar Ltd226
‖, the Supreme Court held that the
unabated pollution due to discharge of objectionable effluents from distillery of sugar
industry in river and adjoining areas involving greater public interest must be checked.
“Narula Dyeing and Printing Works v Union of India227
‖, the court held that
this is a strong pro-environment judgment where Justice Abhichandani of Gujarat HC
repelled the challenge to closure orders issued by the state government under Section 5 of
EPA 1986. Narula dyeing was releasing untreated effluents into Kharicut Canal for over a
decade, though its 12 year old consent required the firm to set up a treatment plant within
6 months.
“S. Jagannath v. Union of India228
‖, the Supreme Court observed that no shrimp
culture ponds should be constructed within the CRZ, all the infrastructure set up within
the CRZ such as shrimp culture farms should be demolished and removed and
aquaculture industry functioning outside the CRZ should obtain clearance from the
authority within a specified period failing which they must stop their operations.
225
Subhash Kumar v. State of Bihar, AIR 1991 SC 420. 226
Re: Bhavani River v. Sakthi Sugar Ltd, AIR 1998 SC 2578. 227
Narula Dyeing and Printing Works v. Union of India, AIR 1995 Guj. 185. 228
S. Jagannath v. Union of India, (1997) 2 SCC 87.
[95]
In ―Vineet Kumar Mathur v. Union of India229
‖ the Court took note of the
continued violation of the State, as well as industries by continuing to pollute water by
discharging effluents and also in not setting up of common effluent treatment plants. The
Court further held that if the industries do not obtain the consent of the State Pollution
Board for running their units, before the fixed time limit the industries will stop
functioning thereafter.
In ―Andhra Pradesh Pollution Control Board v. MV Nayudu230
‖, the Supreme
Court devised the means of effectively preventing location of a polluting industry on the
banks of lakes supplying drinking water to the city.
In ―M.C. Mehta v. Union of India231
‖, the Supreme Court was concerned about
the discharge of untreated effluents into the river Ganga by tanneries located in Calcutta.
According to the Court the scope of the direction issued to the city of Kanpur was
enlarged to include various cities located on the banks of the River Ganga. The above
mentioned cases have clearly pointed out the harms caused by industrialization and the
urbanization. The two terms industrialization and urbanization can be explained
simultaneously. Whenever, the country takes step closer towards the urbanization, it also
encourages industrialization. Without the industries in the country, the modernization will
stop and it will affect the economic growth of the country. But as the court further
explains that ―It should be remembered that the effluent discharged from a tannery is ten
times more noxious when compared with the domestic sewage water which flows into the
river from any urban area on its banks.‖232
Pollution of water of a spring or reservoir is made punishable under Section 277
of IPC whereas pollution of waters other than springs or reservoirs will be covered by
section 290. Justice VR Krishna Iyer233
while referring to above provisions has ascribed
the offence of water pollution to the area of mischief punishable under Section 426 of IPC.
229
Vineet Kumar Mathur v. Union of India, (1996) 1 SCC 119. 230
Andhra Pradesh Pollution Control Board v. MV Nayudu, AIR 1999 SC 812. 231
M.C. Mehta v. Union of India, 1997 (2) SCC 411. 232
M.C. Mehta v. Union of India, 1997 (2) SCC 411. 233
Environment, Pollution and the Law, (1984)
[96]
Moreover, it is important to point out that the legislation through ―The Water
(Prevention and Control of Pollution) Cess Act, 1977‖ levies a cess on water consumed
by certain industries and local authorities. A rebate of 25% of the cess is given for the
installation of a water treatment plant and compliance with section 25 of the Water Act
and standards set under the Environment (Protection) Act 1986. It can be said that the
above mentioned act is an appreciable step taken up by the Government of India.
Problems caused due to Water Pollution:
Raw sewage and industrial waste rendered water in more than half of India‘s 445
rivers unfit for drinking, according to the Central Pollution Control Board. The report
compared pollution levels from 1995 to 2011 including the rivers as well as 154 lakes and
78 ponds in the second-most populous nation. Water from at least a quarter of the rivers
surveyed cannot even be used for bathing.234
There are some serious problems which are caused due to polluted and impure
water. These are many diseases which are caused due to polluted and untreated water like
cholera, diarrhoea, dysentery and etc. These are some severe diseases which can even
lead to the death of the masses. For theses mentioned diseases, the polluted water
contributes in enhancing them more widely all over.
Another problem by water pollution is the loss of some rare aquatic species. The
loss of aquatic species which in turn, leads to the breakdown of aquatic food chain which
can lead to the disturbance in the whole ecosystem by damaging its natural process.
Human-produced litter of items such as plastic bags and 6-pack rings can get
aquatic animals caught and killed from suffocation. Water pollution causes flooding due
to the accumulation of solid waste and soil erosion in streams and rivers.235
National concern to amend law in order to secure water for Wildlife:
In the current news article, the Chief Minister of Maharashtra urged to amend law
in order to secure water for wildlife. In the abovementioned article, it was pointed out that 234
Chaudhary, Archana, More Than Half of India‟s Rivers Too Polluted to Drink, Aug 19, 2013;
http://www.bloomberg.com/news/2013-08-19/more-than-half-of-india-s-rivers-too-polluted-to-drink.html> 235
Go Green Academy, <http://www.gogreenacademy.com/causes-and-effects-of-water-pollution/>
[97]
the construction of reservoirs on rivers and streams in forested landscape actually changes
the hydrology of the area. It explained how the actual water scenario gets affected by the
construction of reservoirs by clearing the forest in wildlife area.
According to the letter to the Chief Minister, it was brought to the notice that
during summer, water table in reservoirs depletes fast. This affects prey-predator ratio of
wild animals during peak period. Wild animals, who concentrate around these reservoirs,
move towards villages due to frequent movement of carnivores near reservoirs.236
Status of current water laws and need of further uniform water law for the country:
21st century-the modern era of developed law and legal regulations for all
significant and necessary things but this century lacks in a uniform water law for the
country. It is important to note some of the important reasons which push for the uniform
water in the country. The importance of water is something which cannot be replaced by
any other source, the importance of drinking water is a major component, for instance
absorption of food in body which can only be performed if clean drinking water is
available. Despite having a 100 types of schemes related with availability of food, the
government must focus on schemes related with availability of fresh drinking water. That
was the only reason because of which schemes like Rajiv Gandhi Water Mission, Total
Sanitation Mission and National Rural Health Mission should be brought together under
the food security Act. Under the Food Security Bill which was recently passed by
parliament has included access to safe and adequate drinking water and as essential
feature among the rights of people.
Under the Indian Constitution water is primarily a State subject, but it is an
increasingly important national concern. Secondly, Several States are enacting laws on
water and related issues. These can be quite divergent in their perceptions of and
approaches to water. And lastly, Water is one of the most basic requirements for life. If
national laws are considered necessary on subjects such as the environment, forests,
wildlife, biological diversity, etc., a national law on water is even more necessary.237
236
Author Unknown, CM urged to amend law to secure water for wildlife, The Times Of India, Mar 19,
2013, Nagpur; http://articles.timesofindia.indiatimes.com/2013-03-19/nagpur/37842589_1_reservoirs-
wildlife-wild-animals. 237
An article from The Hindu newspaper
[98]
Under Indian Constitution, Right to Pollution Free Water and Right to Access
water have been read as a part of Article 21, Right to Life. Courts, at both state level and
at federal level, interpreted A. 21 as article that encompasses the right to safe and
sufficient water.
Kerala High Court in Attakoya Thangal v. Union of India238
recognized water as a
fundamental right. In this case petitioner claimed that scheme that focuses upon pumping
up underground water for supplying water to Lakshadweep Islands would affect the
equilibrium of fresh water, which would ultimately lead to develop salinity in water
resources which would cause harm in long term.
Kerala High Court investigated and monitored the scheme and came to the
conclusion that people‘s right to have clean water, falls under right to life, Article 21. HC
held that ―…the administrative agency cannot be permitted to function in such a manner
as to make inroads into the fundamental right under Art 21. The right to life is much more
than a right to animal existence and its attributes are manifold, as life itself. A
prioritization of human needs and a new value system has been recognized in these areas.
The right to sweet water and the right to free air are attributes of the right to life, for these
are the basic elements which sustain life itself.‖
Water Act was enacted with the aim of prevention and control of water pollution
in India. After the Stockholm conference on Human Environment on June, 1972, it was
considered appropriate to have uniform law all over country for broad Environment
problems endangering the health and safety of our people as well as of our flora and fauna.
The Water (Prevention & Control of Pollution) Act, 1974 was the first enactment by the
Parliament in this direction.239
Water act is very comprehensive as there was just one amendment regarding
section 33A since its implementation. But, it has some flaws where the number of
enforcing agencies in the states is not sufficient enough. So, it has to be worked out with
the concerned authorities. 238
Attakoya Thangal v. Union of India, KLT 580 (1990) 239
The Water (Prevention & Control Of Pollution) Act, 1974 – Relevant Provisions;
<http://hspcb.gov.in/Water%20Act,%201974%20Relevant%20provisions.pdf>
[99]
Also, the concern to include water under the national uniform law has been widely
recognized -
In the given ―Convention on the Rights of the Child‖ (1989), it has been targeted
that the need for adequate food includes clean drinking water in consideration with health
and nutritional well-being of the child. It is important to note herein that human body is
considered to be based of 70% water that clearly emphasizes on the point that water is the
necessity to survive.
Further, if one sees from the international point of view then it is to be considered
that the United Nations in its General Comment 15 stated its intention related with right
to water (under twenty-ninth session 2002). Lastly, the GC15 specifically addressed upon
human right to water, by acknowledging the fact that water is an absolute necessity for
the attainment of adequate standard of living.
Water Act was enacted with the aim of prevention and control of water pollution
in India. After the Stockholm conference on Human Environment on June, 1972, it was
considered appropriate to have uniform law all over country for broad Environment
problems endangering the health and safety of our people as well as of our flora and fauna.
The Water (Prevention & Control of Pollution) Act, 1974 was the first enactment by the
Parliament in this direction.240
Water Act is very comprehensive as there was just one
amendment regarding section 33A since its implementation. But, it has some flaws where
the number of enforcing agencies in the states is not sufficient enough. So, it has to be
worked out with the concerned authorities.
Currently Government‘s survey by Total Sanitation Campaign (now renamed as
Nirmal Bharat Abhiyan), its figures says that more than 50 % of households in India still
do not have a basic toilet. Study by the World Bank's Water and Sanitation Program,
shortage of toilets and proper sanitation facilities proved to result into negative impact,
cutting down India's GDP in 2006 by 6.4 per cent, mostly through premature deaths and
hygiene issues.
240
The Water (Prevention & Control Of Pollution) Act, 1974 – Relevant Provisions;
<http://hspcb.gov.in/Water%20Act,%201974%20Relevant%20provisions.pdf>
[100]
A study published in the British Medical Journal Lancet concluded that around
200,000 children below the age of four dies in India yearly because of diarrhoea, caused
by dirty water.
Therefore the statistic shows the need for the country to develop its laws related
with water so as to improve overall health of the country which directly affects the GDP
of a nation as well as future of people in the country.
Remedies and Conclusion:
Water is a state subject in the distribution of legislative powers in the Constitution.
But, with time the government has started realizing the need of the uniform water law for
the country. The advantages of the uniform water law have been already discussed above
in the essay. The other remedies to provide country with the safe drinking water can be
read as under. Firstly, it is not hidden now that water which is considered as a lifeline for
the human being is getting polluted at an alarming rate should be purified and treated with
the help of new innovative scientific technology. Secondly, the courts should ban the
establishment of industries discharging harmful effluents in the water in residential area.
They should have proper area allocation and it should not be nearby to any fresh water
body. Thirdly, the untreated garbage should not be allowed to dispose. Fourthly, the
municipal bodies should take care of the proper drainage and sewage system in the state.
Fifthly, the government should come up with new provisions related to the minimal use
of pesticides and chemicals as fertilizers.
To sum up the essay, it is important to note that the beginning starts from one‘s
own home, no government‘s efforts can make rivers unpolluted if the common man has
no consciousness how to keep the rivers clean and unpolluted as he keeps his own house
clean and tidy. It is a burning issue that the laws dealing with pollution free rivers need to
be implement soon with the emphasis on public awareness about the significance of
consequences of river pollution in the future and how can it take a serious toll if not
controlled.
That‘s all for the First Issue.
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[101]
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[102]
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